Swaps: The error of the cancellation is essential


To the Supreme Court, the error on the terms of cancellation of the swap is essential, and can lead to the cancellation of the swap contract.

This has been expressed in its Judgment of the Plenum (which therefore it is directly applicable law) of 15 September 2015.

La empresa Original Packages S.L. ("OP") lawsuit filed ordinary lawsuit against Banco Santander, requesting the nullification of a financial transaction framework agreement signed in 2005, within which they had been chaining up to four swaps or "swaps", based on the existence of an error caused by the lack of information enough, adequate and clear.
The company, He had a mortgage loan 900.000 euros and a credit ICO 300.000 euros. On the initiative of the bank he was offered a first swap which he was later replaced by three other contracts. Such cancellations and new firms swaps They were made following the instructions of the bank.

The annex to the contract swap the following clause was established to cancellation:

"The product described here may be canceled in advance. In that case you will have to be valued at market price and redemption value being determined by the terms of the then ".

When he tried to cancel the last swap, the bank reported that the Cancellation would cost 249.706 euros.

The Court of First Instance No. 4 in Bilbao It ruled in December 2011 in which full estimated demand. Considered ground that he had not informed the applicant clearly, complete and precise scope and consequences of all the clauses of the swaps.

The bank uses and Provincial Court upheld the appeal and acquit the bank. For Hearing, the duty to provide information is not obliged to forecast future studies on the evolution of interest rates and thus, believes in arranged swaps, not that duty was violated bank.
So "OP" presents resource appeal to the Supreme Court alleging infringement of Articles 1265 and 1266 the Civil Code and 79 bis of Law 47/2007: lack of information on the bank's forecasts for Swaps and the cancellation costs.

The Lounge, It indicates that it could not violate Article. 79 bis LMV that was not in force when the swaps were agreed.

Regarding the duty of disclosure, stresses that:

“(….).. the details of what risk is assumed, depends what circumstances and at what traders such risk is associated, they are not simply matters of calculation, accessory, but They have the essential character, as they projected on the assumptions regarding the substance, qualities or conditions of the object or subject of the contract, specifically on liability and solvency of those with whom you hire (or existing guarantees against insolvency), that they are integrated into the main cause of its celebration, they affect the risks attaching to the investment made ".

To the Supreme Court, the legal representative of the contracting company Swap, He had adequate knowledge of the financial market, because besides these four swaps, He had concluded similar transactions with other financial institutions. Error vice is not based on the perceived lack of evolution they would have interest rates. Uncertainty about market developments is inherent to the random component of the swap agreement and in this case settlements were both for and against the client.

However, other error with regard to the cost of the cancellation of swaps: The contract itself, You could not deduct could cost the customer as the cancellation of swaps. They did not know even bank employees.
It considers that the cost of cancellation may be part of the conditions that materially affect the cause of business. It indicates literally:

"The bank can not tell the exact cost of cancellation at any time of the contract period, but it has to give a generic reference and approximate, you can allow the customer to get an idea of ​​how much it could cost the cancellation and the risk that this assumes ".

And further indicates:

"In view of the previous contracts and about the paucity of the swap agreement, ignorance of the early termination of the Swap a cost could report back as he liquidated the bank, It shows that the client can not represent that could become so onerous cancellation. This circumstance It affects an essential element of business, the risks of early termination, stresses the importance of the error, which is also excusable, because it did not inform the contract, nor has it made the bank before hiring, and in light of how they had developed earlier cancellations, is justified could not imagine such a burdensome cost ".

Ultimately, the lack of information on the costs of cancellation swap "affects an essential element of the business" and can determine the existence of a consent vitiated by errors.

The reason is estimated, vanishes and only the fourth swap, it is considered that only he is suffering from the vice Error.

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