Can I hire a swap by phone?
A swap can be contracted by telephone, provided that the bank fulfills its duty of disclosure.
Only in the event that it has been properly informed about the swap and in particular on their cancellation charge, It would not be defeatable by the existence of error in the consent.
This is the criterion Supreme Court, collected in its judgment of 3 December 2015, que revisamos a continuación.
The 8 October 2008, by telephone conversation (recording whose record shows) It occurred Hiring a swap, with a notional amount of 30 million the first year, 20 the second and 10 el tercero, between the company and BBVA Logifruit.
After that conversation, BBVA sent Logifruit the confirmation document of the swap agreement dated 27 October 2008.
The 13 November 2008, BBVA Logifruit referred to a burofax in which it expressed the rejection of the contract and required the Bank to not make any charge or payment because of the swap.
The Bank replied that if you wanted to terminate the contract, I had to pay approximately 665.000 euros.
They occurred 5 liquidations for Logifruit, but since April 2009, all settlements were negative, summing the number of 1.194.618 euros.
The purpose of swap was the general hedging of the company, but he had no relationship with any of the policies that had subscribed. And the initiative was hiring Logifruit: It finds no advice by the Bank.
The BBVA filed suit against Logifruit to be ordered to it to pay 1.194.618 euros for the settlements of the swap.
Logifruit, He answered the complaint and brought a counterclaim seeking a declaration of invalidity for lack of the swap agreement and the return of 69.872 euros for return of undue charges and 93.451 for improper fertilizers. There had been no confirmation of the contract, is, He had expressed his disagreement reliably, within the legal period provided for telephone contracts. Alternatively requested the annulment by the consent vice error, as a result of failure by the bank of its duty of disclosure.
The Court of First Instance No. 19 Valencia rejected the demand of BBVA and upheld the counterclaim of Logifruit, BBVA condemning the payment of the amounts mentioned above, imposing costs to the bank. The recruitment was not confirmed, so the contract was void for non-existent. In addition to his sentence he referred to the lack of information on the cost of cancellation.
BBVA appealed to the Provincial Court, ninth section which dismissed the appeal and upheld the judgment of the first instance. It considered that the contract did not get to improve for lack of confirmation.
So the bank, interpuso recurso extraordinario por infracción procesal (which it was declared inadmissible) and appeal to the Supreme Court.
The bank alleges that:
1.-There was full agreement to the contract by the telephone conversation.
2.- The confirmation requirement imposed by Article 33 of RD 217/2008, not condition the validity of consent phone does not allow the unilateral withdrawal or disengagement by the customer.
The Supreme Court considered the three grounds.
The execution of the contract is produced by the concurrence of the offer and acceptance by telephone.
The registration requirements of the recordings and written confirmation are formal requirements "ad probationem" but its failure does not determine the absence or invalidity of the business.
Even in the case of consumers, in Law 22/2007 on the distance marketing of financial products, Excluding swaps, it would be a unilateral right of withdrawal.
It must then rule on the appeal against the annulment of the swap on the grounds by the Court of First Instance, in not asking about the cancellation costs.
The Chamber reiterates the view of its recent judgments that we have discussed in other entries. The bank must report:
1.- The Product characteristics, especially the risk of negative settlements.
2.- The cost (at least approximately) cancellation of the swap in a period of falling interest rates (STS 491/2015 of 15 September).
In the telephone recruitment, not the cancellation possibility and cost it mentioned. And the Chamber says:
"In this case we can not deny that knowledge of the eventual cost of cancellation was essential and relevant at the time of concluding the swap, and inexcusable to be a duty of information on the specific hazards of the product (art.79 BIS3 LMV), which breached the bank ".
Is, keep going (referring to cancellation charge) indicating:
"That could be understood properly conducted information, It should have indicated, before making the swap, not after (…)”.
The lack of this information affects an essential element of the contract is substantial and that to have known, the client would not have hired. And it is excusable for the special duty of information Article 79 to 3 LMV requires the bank to sell complex products.
Ultimately, the annulment of the swap by mistake consent and confirmed customer counterclaim.