Swaps "chains" of Santander declared invalid by the Supreme Court



The Supreme Court has upheld the annulment four Swaps Banco Santander, hired by an SME, in Case 16 December 2015.

De la misma, cabe destacar la reafirmación (umpteenth) that la carga de la prueba de la cumplimentación de los deberes de información, both before and after the entry into force of MiFID, corresponds to the finance.

También es muy importante la consideración de que a pesar de haber cuatro contratos de “Swap” sucesivos, the existence of error with the consent. In many sentences, the existence of several swaps led to the conclusion the judge to the impossibility of concurrency error. This Supreme Court ruling allows argue that this need not necessarily be so.

An SME engaged in the manufacture and marketing of hams and sausages based in Barbastro, he arranged two loans for the purchase of a warehouse and the acquisition of machinery.

In order to reduce the impact of rising Euribor, el Banco Santander les ofreció un swap en mayo de 2005, which it was novated to 2006 and in 2007.

In the successive innovations swap, conditions increasingly favor the bank, en perjuicio del clientand: a bonus that the customer had removed the 0.25% and gradually climbs the wall.

In 2008 a final swap is signed, linked to inflation, on un import notional 300.000 euros. This contract "intended to" perform a function of coverage for future salary increase in the workforce: The bank is obliged to pay the actual annual accumulated inflation and the customer would pay a fixed increment stipulated, every year.

No evidence that the bank would make delivery of documentation prior to the signing of the swaps.

In view of the negative liquidations Sustained, SMEs claim to the bank, requesting the annulment by mistake on consent and alternative, compensation for the damages suffered.

The Court of First Instance No.. 1 Barbastro nullified the contracts, with the bank to pay costs.

La entidad financiera presentó recurso de apelación y la Audiencia Provincial de Huesca, in sentence 30 May 2012, He dismissed the appeal and upheld the judgment of the first instance.

Así que el Banco Santander, He filed an extraordinary appeal for procedural infringement and appeal to the Supreme Court.

The burden of proof information

Santander motivates their extraordinary appeal for procedural infringement of Article 469.1.4º LEC, in relation to art. 24 EC and the arts. 316, 326 and 376 the LEC. It considers that there is error in assessing the evidence. He says that the judgment did not take into account the subsequent hiring of swaps, nor he was assisted by its financial advisers and the company had a significant volume of sales.

The Supreme Court rejects the plea, that seeks to challenge legal assessments, relating to insufficient information on the swaps and is excused the error suffered by an incorrect legal remedy.

In its appeal the Bank claims as grounds first infringement case law presumption "rebuttable presumption" of validity of contracts and the exceptional nature of the appreciation of the vices of consent, as well as the infringement of Articles 1265 and 1266 Civil Code.

The High Court dismissed the first plea, Referring to STS 20 January 2014. La entidad financiera está obligada a suministrar una información comprensible y adecuada de los productos financieros que necesariamente debe incluir "Guidelines and warnings about the risks associated with such instruments": Ignorance of these risks, entails a wrong mental representation and error is essential that affect the assumptions were leading cause of contracting the product.

In this case, the customer is not a professional investor and has not disputed that receive this clear and complete information on the specific risks.

"The evidence of compliance with these reporting duties weighed on the bank"

And la obligación de informar por parte del banco, affects the occurrence of error is excused.

"The duty of disclosure can not be understood supplied, in this case, for the information provided in the annex to the contract confirmation swap "

His mere reading is insufficient and the bank must articulate how the assessments are made and the specific risks assumed.

Client, Having known the real risks and costs, I would not have hired the product.

The bank claims as second plea, la existencia de actos propios de confirmación por la pyme, You are having paid settlements and have made three swaps.

La Sala desestima el motivo por que no concurre el requisito de conocimiento y cese de la causa de nulidad que exige el artículo 1311 Civil Code. There is therefore no confirmation Business, either express or tacit.

El tercer motivo alegado por el banco es la incorrecta aplicación del artículo 6.3 the C.Civil. La Sala desestima el motivo, since the annulment is declared based on the existence of error in the consent and not for infringement of mandatory rules.

Ultimately, the annulment of the swaps is confirmed by the bank to pay costs.

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