7 Key points on allegations of estoppel, confirmation and validation in the Swaps

swap

 

 

El Tribunal Supremo rechaza las alegaciones de actos propios, confirmation or validation of the Swaps.

On “check-list” defenses of financial institutions in claims on swaps or swaps, usually bearing the claim of the existence of own actions, or what the contract has been confirmed or confirmed by the client.

The High Court has spoken repeatedly about establishing a doctrine that offers little doubt that rejects such allegations. Parte de esta doctrina se argumenta en su Judgment 16 March 2016, although we will refer to other similarly recent statements to give a perspective on the matter. In his case, bolding and italics are our.

The main criteria are as follows:

1.- Confirmation requires a clear understanding of the cause of nullity:

STS 16 March 2016:

“[the]a confirmation of voidable contract is the manifestation of the will of the party who is to the right to challenge, made expressly or impliedly ceased after the cause that motivates the contestability and knowledge of this, express or tacit confirmation It must be carried out after it had ceased the cause that motivates the contestability and knowledge of this, which does not happen in this case. Hence, there was no confirmation of the business, either express or implied ".

And referring to the STS 14 October 1998 added:

“Whether that attitude manifested passively upon subsequent knowledge of the legal business, the situation admits different readings, as more has not been consummated prescription or limitation of actions, always challenging the act will be possible through legal means”.

2.- El hecho de haber pagado las liquidaciones negativas, have canceled the contract, or have hired on several swaps, They not constitute estoppel nor confirm nor validate the contract voidable:

STS 16 March 2016:

or the perception of positive settlements, or payments of negative balances, or early termination of the contract, or even chaining several contracts, convalidantes can be considered acts of genetically flawed business by mistake in the consent, since they do not constitute unequivocal acts of tacit will of validation or confirmation contract, in the sense of creating, define, pin up, Change, extinguish or clarify no doubt that confirmatory situation ".

This criterion is repeated using the expression "Nor payments of negative balances” en las sentencias del Tribunal Supremo de 11 March 2016, 3 February 2016, 1 February 2016, 17 December 2015, 9 December 2015, 4 December 2015, 25 November 2015, and 10 November 2015.

3.- The claim having left elapse time, is not itself act:

El Alto Tribunal descarta como constitutivo de acto propio que el cliente se retrase en formular su demanda. Utiliza literalmente la expresión "Neither the delay in claiming" in Case 11 March 2015, 3 February 2016, 1 February 2016, 9 December 2015, 4 December 2015, 10 November 2015.

STS 11 March 2015:

"Neither positive perception of settlements, or payments of negative balances, or early termination of the contract, or the delay in claiming, or even chaining several contracts, convalidantes can be considered acts of genetically business vitiated by error in the consent, since they do not constitute unequivocal acts of tacit will of validation or confirmation of the contract "

4.- The cancellation of the contract does not confirm:

In the STS 16 March 2016, quoted the STS 17 December 2015:

"by the fact that early cancellation of the product before the certain risk that such a situation is going worse and involve a substantial financial loss, It is not voluntarily performing any volitional act that doubt or unequivocally the decision to waive the exercise of the action for annulment, Once all to be willing to give up the nullity action arising from consensual Error, It must be clear and precise understanding of the scope of the error, not turning, so, apply the estoppel and Articles 7.1 , 1.310 , 1.311 and 1.313 the Civil Code ".

5.- Negotiations with legal aid for cancellation, either validates the swap:

STS 16 March 2016:

"Further, the apparent negotiations with the entity, legal assistance, You can not have the effect of virtuality or relinquishment of a possible action for annulment because, besides not stipulate nothing in this sense, the particularly distressing circumstances caused by the default situation and to the real risk of a heritage even more aggravated impoverishment, prevent argue that the agreement was coated conditions of equality parts fit for that, in an appropriate application of the estoppel, a legal situation that would have, the validated a vitiated by error Agreeing business would generate ".

6.- The perception of some positive settlement also confirms the contract:

STS 3 February 2016

By the fact of receiving a positive settlement by the bank in the current account customer, or cancel the product in advance before the real risk that this situation is going worse and involve a substantial financial loss, It is not voluntarily performing any volitional act that doubt or unequivocally the decision to waive the exercise of the action for annulment, Once all to be willing to give up the nullity action arising from consensual Error, It must be clear and precise understanding of the scope of the error, which it has not occurred at the time of receiving the positive settlement, because the customer thinks the contract that guaranteed that he would not rise in interest rates, It is deploying its actual effects and expected, and therefore it is not aware of the mistake at that time suffered. no resulting, for, application of the doctrine own actions and Articles 7.1 , 1.310 , 1.311 and 1.313 Civil Code “.

STS 1 February 2016:

“para poder tener voluntad de renunciar a la acción de nulidad derivada de error consensual, It must be clear and precise understanding of the scope of the error, which it has not occurred at the time of receiving the positive settlement, because the customer thinks the contract that guaranteed that he would not rise in interest rates, It is deploying its actual effects and expected, and therefore it is not aware of the mistake at that time suffered. no resulting, for, apply the estoppel and Articles 7.1 , 1.310 , 1.311 and 1.313 the Civil Code ".

7.- Para la existencia de actos propios, the client must create in the bank's reasonable expectation that no claim:

STS 12 February 2016:

"In the present case, according to the evidence examined, You can not sustain that the applicant created a reasonable expectation, to the bank, which would generate for the same confidence in a subsequent performance consistency by the applicant that ruled out any claim of the product purchased ".

Ultimately, where placement swaps or swaps there is a sufficiently repeated doctrine, como para considerar como extemporánea la alegación de la existencia de actos propios, confirmation or validation.

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