Supreme Court doctrine floor Clauses

clausula suelo

 

The judgments of the Supreme Court since 9 May 2013 They have consolidated the doctrine of floor clauses.

In this entry, we summarize the main points contained in the judgments on the subject.

1.- The ground clauses are general conditions of contract.

Los requisitos para que una cláusula sea considerada como condición general de la contratación son, contractualidad, predisposition, taxation and generality. (SSTS 9 May 2013, 29 April 2015).

Contractuality:

Que la cláusula haya sido redactada para ser incluida en un contrato. La existencia de una norma administrativa como la Orden Ministerial de 5 May gives 1994, It does not preclude the application of the Act General Conditions of Contract.

STS 9 May 2013:

“[the]to existence of a banking regulations regulation both in terms of the organization of credit institutions and in terms of mortgage contracts and the rules of transparency and consumer protection, not preclude the LCGC applicable to mortgage contracts subject to this litigation”.

(…)

“But that law does not require that mortgage contracts include clauses soil or that are included with the specific wording; does not exclude, as will be seen, another better information provided to the customer (or that the information provided it is in a more appropriate way), or that its mere compliance to exclude the abusiveness of the clause for lack of transparency, as we stated in the judgment No.. 241/2013, of 9 of May ."

Predisposition:

Es un hecho notorio que por las entidades financieras se utilizan “textos estandarizados” en sus contratos que incluyen tal cláusula (STS 29 April 2015).

Imposition:

To consider that the clause is imposed is not necessary that the consumer has opposed an active form.

STS 29 April 2015:

“The argument that it is necessary that the consumer has been unable to avoid its application, without sufficient merely passive attitude, It can not be accepted.

(……)

There “imposition” a contractual clause, in order to be considered as a general condition of recruitment, when the addition of the clause to the contract work has been produced exclusively professional or entrepreneur. This follows from the provisions of art. 3.2 Directive 1993/13 / EEC . It is not necessary that the other contracting party is obliged to resist, or that the consumer lacks the ability to contract with other economic operators not established that clause. Imposing simply assumes that the biased by a party clause has not been individually negotiated”.

And customer training, It is not decisive for the existence of taxation:

STS 29 April 2015:

“The consumer has more or less training does not exclude the tax character of a general condition. The protection that the law gives consumers and users is not conditioned to concur in the same situation of helplessness or ignorance. And the use of general conditions, As seen, befits mass recruitment of goods and services commonly used, but the greatest consumer education affects the ability to negotiate.”

You can not require the consumer to make an analysis in detail of the AGB:

STS 29 April 2015:

“(..) what matters is that the contract predisposed respect the balance of rights and obligations that the consumer is entitled legitimately to expect, without the consumer has to make a thorough examination of them (….).”

Generality:

No es necesario el uso generalizado sino que basta su empleo en un contrato de adhesión que no haya sido negociado individualmente.

STS 29 April 2015:

“In any case, it is known that such clauses are generally used by businesses and professionals in these sectors of procurement (in fact, la redacción de esta cláusula es la de una delas condiciones generales de la contratación que fue objeto de la acción colectiva sobre la que versó nuestra sentencia núm. 241/2013, of 9 May ). It is not necessary that the clause is used in all contracts held professional or entrepreneur consumer ( ruling No.. 241/2013, of 9 May , paragraph 149). There may be several models of clauses that are used in the various contracts, for various reasons.”

2.- The burden of proof on the existence of negotiation rests with the financial institution.

STS 9 May 2013:

“Even more, in fact although there were no specific rules on the burden of proof of the existence of individual negotiation, another thesis itself towards the consumer to impossible to show a negative fact-the absence of trading-, which constitutes a test impossible or diabolic, as clarified by the judgment STS 44/2012, of 15 February 2012 , reproducing the constitutional doctrine, violate the right to effective protection”.

3.- Las cláusulas que definen el objeto principal del contrato también están sometidas al control de abusividad.

STS 29 April 2015:

“The clauses on the essential elements of the contract does not lose its character as general conditions of the contract or excluded from the rules on unfair terms.

(….)

That clause in a contract concluded with a consumer regulate an essential element of the contract does not preclude having legal consideration of general condition of the contract if the conditions for it (contractualidad, predisposition, taxation and generality), nor excluded from the scope of Directive 1993/93 / EEC and the rules of internal law that transposes, as is the case of the Law on General Conditions of Contract and TRLCU.”

4.- The clause must overcome the control of incorporation.

It is necessary for grammatical or documentary evidence specified in the contract. They should be used typefaces legible and understandable wording.

5.- The second control is transparency.

Transparency is that the adherent knows both economic and legal burden of the contract concluded.

STS 29 April 2015:

“supposed, also, that clause can not be used to, grammatically although they are understandable and are drafted in legible characters, surreptitious involve an alteration of the object of the contract or the economic balance of price and performance, I can go unnoticed in the middle adherent.

(…)

It's necessary that, also, are transparent, in the sense that the consumer can obtain a complete picture of the economic and legal that the inclusion of such a clause would entail consequences.”

6.- The lack of transparency leads to abusiveness control.

STS 29 April 2015:

“the lack of transparency brings with it a substantial imbalance to the detriment of the consumer, consisting of deprivation of the possibility to compare between different existing offerings in the market and be a faithful representation of the economic impact that will get you the performance contract under contract with a financial institution or other, or one or another type of loan, from among the various offered. Therefore, these terms may be regarded as unfair if the defect causes an alteration transparency surreptitious not the target balance of price and performance, that generally is not controllable by the judge, but the subjective balance of price and performance, namely, as it could represent the consumer attention to the circumstances in hiring.”

This interpretation is confirmed by the STJUE of 30 April 2014 (Case C-26/2013) and STJUE of 23 April 2015 (Case C-96/2014). In the same sense, STS is pronounced 23 December 2015.

The main indicators of the lack of transparency its:

STS 9 May 2013:

“»a) Creating the appearance of a loan agreement in which variable rate fluctuations downward benchmark, will impact in a decrease in the price of money.

»b) The lack of sufficient information that is a defining element of the main object of the contract.

»c) Creating the appearance that the soil has inescindible consideration as fixing a roof.

»d) Its location between an overwhelming amount of data among which are masked and that dilute consumer attention in the case of those used by the BBVA.

»e) The absence of simulations of various scenarios, related behavior reasonably foreseeable interest rate at the time of hire, en fase precontractual.

»f) Lack of clear and understandable warning about the comparative cost with other products of the entity.”

7.- The effects of the declaration of nullity occur from the 9 May 2013.

The High Court continues its doctrine of "partial" retroactivity pending the ECJ ruling on the matter.

Ultimately, podemos afirmar que la doctrina sobre las cláusulas suelo está consolidada y solamente queda como controvertida la cuestión de la retroactividad, pending the ruling by the ECJ.

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