Stumble twice in the same complex product
To the Supreme Court, repeated hiring a complex investment product does not necessarily imply knowledge of risks.
Until now, the fact that he hired several swaps, bonos convertibles, structured, preference shares, subordinated debentures, Multicurrency mortgages, u otros productos financieros complejos y de alto riesgo se utilizaba por los abogados de las entidades financieras como argumento de defensa, in the sense that they could not hire twice something that was unknown. In the Courts, that "simplification" has been welcomed on many resolutions.
In cases where it had contracted several times the same product, the claim in the courts became "risky" and often has been ruled out for this reason.
However, reiteration in hiring did not necessarily imply knowledge of the nature of the product or its risks.
Many SMEs were forced to hire a swap if they wanted to obtain funding. And each time the policy is renewed loan or, It had to hire a new swap, usually improving the conditions for financial institution.
In the case of retail investors, has been very often the case that savers, every time we met some equity in your current account, They were bought preferred stock or subordinated debentures, no you have explained in no time running the risk.
The Supreme Court has established doctrine, indicating that repeated hiring of complex products does not necessarily imply knowledge of its operation and its risks. Recently, I made clear in its judgment of 16 December 2015 we discussed here,
"It satisfies the condition of knowledge and removal of the cause of nullity required by art. 1311 Civil Code . The existence and development of the three contracts, arranged in succession, for, at first, while the settlements of the swap They were in favor of the customer, it was not aware of vice ".
And it has again reiterated that criterion in its Judgment 12 February 2016. In this case, They had contracted swaps (swaps) the 17.3.2005, 18.03.2005, 31.05.2006, 11.10.2006 and 25.04.2007. Room sets:
"And the sequential recruitment of swap is not requesting the annulment of which shows that the client was an expert in this product, as it still had not been updated I insist serious risk to complex product that should be employed and it was not known ".
Moreover, Company manager, He had a degree in law and economics and had extensive legal experience. Also, Managing Director of the company was licensed in business. However, the Board considers that error because there is no proof that had specific knowledge of swaps and the burden of proof on the reporting obligations rests with the bank:
“(…) la preparación profesional del Sr. angel Jesus (degree in Law and Economics, and worked in a law firm with international affairs), and financial risk of the company (3.680.000 euros), do not justify the administrator and the company were professional investors, It is according to the classification reform introduced by Law 47/2007 analog and serves to demarcate when there was a duty to report that they do not. Under the current art. 78 to LMV, Professional investors are "those who are presumed experience, knowledge and expertise to make their own investment decisions and properly assess the risks ".
No any professional training, related to the Law and Business, nor ordinary financial activity of a company, be presumed is ability to make their own investment decisions and properly assess the risks. Training and experience must be related to the investment in this type of complex products that may demonstrate that the customer knows it has to cater to know how the product works and knows the risk taken. In our case, a degree in Law and Economics, and he has practiced as a lawyer in an office wearing international affairs, It is not enough to assume that the administrator could know, in the year 2005, when he signed the first swap, or after, when he signed the four remaining swaps, what are the risks of the product were hired ".
In summary, the Supreme Court has established jurisprudence that the subsequent hiring of a complex product does not necessarily rule out an error on consent. And being a lawyer and economist, does not make the client professional investor or supposed to have knowledge of complex investment product contracted.