The Supreme blesses the floor clauses in companies

clausula suelo

 

For the High Court, control nonusers transparency does not apply to the floor clauses in loans to customers.

The Judgment 3 June 2016 Supreme Court viene a despejar las dudas que se habían planteado en torno a la validez de las cláusulas suelo cuando el prestatario es una empresa.

Some sentences Provincial Courts (Cáceres 3 June 2013, Cordoba 18 June 2013 or Soria 18 February 2016) They had declared the nullity of the clause floor in cases where the actor was not a consumer. Este criterio ha sido minoritario, and the Supreme Court has to clarify its position on these cases.

In the STS 3 June 2016, the plaintiff signed a home equity loan to finance the purchase of a premises to install a pharmacy.

The Commercial Court 1 A Coruña partially upheld the claim and ordered the removal of the clause floor, in sentence 6 November 2013.

The financial institution filed an appeal and the Provincial Court of A Coruña the estimated sentence 29 May 2014, considering that the applicant had not provided consumer and therefore, not control transparency should apply.

The Supreme Court confirms this criterion.

Transparency control

to overcome, clauses can not be used to (grammatically although they are understandable and are drafted in legible characters), involve an alteration of the object of the contract or the economic balance of price and performance that can go unnoticed for an average customer.

Unlike inclusion control, transparency control is reserved for adherent provided consumers (4.2 Directive 93/13/EEC), for its "proximity" to the concept of abusiveness.

In contracts with "entrepreneurs" the only limits are the civil and commercial law and respect to good faith and fair balance.

In this case, It has not been argued that the clause exceeds the control soil incorporation. Moreover, la sentencia recurrida declara como hecho probados que hubo una negociación entre las partes y que la prestataria fue informada de la cláusula suelo y sus consecuencias. In summary, se concluye que la cláusula suelo es válida.

The Explanatory Memorandum of the Law of Contract Conditions clearly indicates that the concept of abuse is limited to consumer contracts and adds:

“This does not mean that the general conditions between professionals can be no abuse of a dominant position. But such a concept is subject to the general rules of contract invalidity. Namely, nothing prevents the courts could also declared invalid a general condition that is abusive when it is contrary to good faith and cause a significant imbalance between the rights and obligations of the parties, even in the case of contracts between professionals or entrepreneurs.”

However, the Chamber indicates that this idea lacks regulatory development.

STS 9 May 2013 ya rechazó en su fundamento jurídico 233 c), que el control de abusividad pudiese realizarse a cláusulas suscritas por profesionales o empresarios (on the same line the STS 28 May 2014). El control de incorporación por el contrario, sí se aplica tanto a profesionales como consumidores (Arts. 5.5 and 7 LCGC).

STS 15 December 2015 sets:

“[the]a requirement for clarity, concreción, simplicity and comprehensibility of the art direct. 7 b) LCGC not reach the level of demand that we apply to controlling transparency for contracts with consumers”.

As to limit of good faith, enshrined in Articles 1.258 C.C. and 57 C.Com., the proven facts of abuse of a dominant contractual position is not perceived by the financial institution.

There were negotiations between the parties, It was informed of the existence of the clause floor and warned of its operation and consequences.

Ultimately, The appeal is dismissed and is considered valid ground clause applied to the appellant.

However, Judge D. Francisco Javier Orduña Moreno emits a particular vote to the judgment of which we highlight the following points:

1.- Having been negotiating and explanations on the floor clause, It is not debatable dismissal of the appeal.

2.- However, can not be eliminated generally control transparency for small and medium entrepreneurs who act as mere adherents in hiring "mass".

Y para mejor comprensión, Judge puts a clear example: Two brothers, without knowledge or financial experience, go to a bank for two loans, one for mounting a newsstand and buy one for your home. Son atendidos a la vez por un empleado del banco que ofrece a ambos la misma información.

However, one of them is protected by the clause floor and the other not: It is not considered that the solution is correct.

There is a economic public order, que supera la concepción meramente formal de los valores de libertad e igualdad. And the predisposing contracting mass, You must meet special configuration contractual duties, in order to prestacional balance and comprehensibility of the contract.

In conclusion, Judge considers that control transparency should extend to such entrepreneurs, based on the same reasons that support the control of incorporation: The willingness of clauses and inferiority in the contractual position of adherent.

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