9 Requirements Supreme Court to annul the clause floor in companies,es

ground clause businesses

While it is rejecting the possibility of applying the transparency control clauses in loans taken out by floor professionals, in Case 18 January 2017 It shows us the way to get your cancellation.

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The Supreme Court has reiterated the impossibility of professionals and companies claim the amount overpaid due to the application of the clause floor, by controlling transparency in sentences 18 January 2017 y a través del error vicio en su sentencia de 20 January 2017. However in the first, the High Court in its sixth foundation indicates the legal way to obtain the annulment.

On sentence 18 January 2017 a case is resolved against Abanca: Three individuals sued the then NCG Bank S.A.. (today Abanca) calling for the declaration of invalidity of the clause "floor" and refund the amount overpaid. They had borrowed 110.000 euros to finance the purchase of a premises for the office. The model number Commercial Court 2 Pontevedra dismissed the lawsuit sentence 26 March 2014. It found that customers did not have the status of consumers. So they appealed and the Provincial Court of Pontevedra dismissed in Case 24 June 2014, for the following reasons:

(i) The plaintiffs are not consumers;

(ii) Accordingly, It does not apply transparency control;

(iii) La cláusula suelo está suficientemente explicada y resulta comprensible para los prestatarios.

So customers filed appeal to the Supreme Court. They based their action on infringement of Articles 2,3 and 4 relative to 82.1 and 82.4 the TRLGCU, and misapplication of Articles 2, 5.1, 7.1, 8, 9.2, and 10.2 of the Law on General Conditions of Contract in relation to Articles 1.256 a 1261 Civil Code.

The High Court stated first that the date of the loan contract (8 March 2007) is not applied the TRLGCU but the General Law for the Protection of Consumers Users 1984. Under that law they had such quality who acted as final recipients of products or services, without the aim of integrating them into a business or professional activity.

If the home was to be dedicated to office, acquirers did not intervene as consumers but as professionals. And this fact can not be contradicted by a mere hypothesis that the local destination may be changed. So the plea is dismissed.

Regarding the control of the general terms and conditions in contracts with professionals or entrepreneurs, the Chamber refers to its doctrine formulated by the judgment of the plenary session 3 June 2016. In the preamble of the LCGC indicated clearly that abusiveness concept is limited to consumer contracts. It is indicated in the same direction, He did the STS 9 May 2013.

As regards control transparency, It can not be made on contracts in which the adhesive does not have the legal quality of consumer. Neither Community or national level has created a regulation beyond the reference to the general civil and commercial law respect to good faith and fair balance.

However, despite earlier claims, Hall indicates the "path" by which could achieve the elimination of the clause floor in very specific cases of professionals and entrepreneurs: En el apartado sexto de la sentencia de 18 January 2017 se refiere al principio de buena fe: Articles 1258 C.C. and 57 of the Commercial Code stipulate that contracts oblige all the consequences that conform to good faith. Therefore, clauses contrary to good faith would not be binding. And it indicated that the principle of good faith is defensible:

"For clauses involving an imbalance of contractual position adherent, namely, those who surreptitiously modify the content that the adhesive had been represented as agreed in accordance with the nature and function of the contract. "

Also, notes that this approach room:

"It is consistent with the provisions of the Principles of European Contract Law" which provides for the nullity of unfair terms whatever the condition (consumer or) acceding, meaning those that "cause, to the detriment of one party and against the principles of good faith, a significant imbalance in the rights and obligations of the parties under the contract ' (art. 4:110,1);

Although you can not come to discuss the price, a clause floor could have:

"Surprising character contrary to good faith would be determined by the contradiction between the conclusion of a variable rate and limitation to such variability from a general condition. Connects this criterion with the rule of "surprising terms" (jurisprudencialmente developed in other areas, especially in relation to the insurance contract), according to which those stipulations are invalid, under the circumstances and nature of the contract, are so unusual that the adhesive could not reasonably foreseen if any. That, and the embroidery, connects with the mention of the preamble LCGC abuse of dominant position, in the sense that the predisposing misuses of its ability to impose the general conditions for introducing clauses which distort the contents of the contract. "

And the Chamber continues showing us the way:

"That could be estimated that such circumstances, we must take into account the level of information provided, correct information because the surprise factor would exclude, and the diligence shown by the borrower adherent to meet the economic and legal consequences of the loan and possible future effects on the overall condition discussed on the cost of credit. diligence required to adherent entrepreneur who depend, to a large degree, his subjective circumstances, as commercial legal personality, turnover, corporate structure, experience, financial literacy, advice, etc.”

Now, It makes us warning that as the consumer is not adherent, They operate the general rules of the burden of proof and must be the borrower to prove that that provision has been introduced in a surprising manner so that the contract is denatured and frustrated expectations. Indicates that It is the borrower who must prove the absence or inadequacy of information and who "Indicate what your personal circumstances that may have influenced the negotiation are and to what extent the clause was imposed abusively".

Namely, estos serían los requisitos del Tribunal Supremo para conseguir la anulación de una cláusula suelo cuando el prestatario es empresa o profesional:

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So in certain circumstances and with sufficient proof by the borrower, the Supreme Court left open the door to the possibility of obtaining the annulment of the clause floor when the borrower is professional.

The problem will be sufficient proof of the above requirements.

In this case it is stated that there was no evidence of abuse of dominant position contractual, or bad faith to surprise the borrower.

So the appeal is dismissed.

Case 20 January 2017 It's similar: commodity Naquer S.A. filed a complaint against Caja Rural de Jaen requesting the annulment of the clause soil and its application was rejected both at first instance and by the Court of Jaen. Considerations of the First Chamber of the Supreme Court are similar to those of the judgment of 18 January 2017, with the difference that arises by the borrower vice of consent, question was considered unproven. So the path of error does not seem appropriate consent.

Ultimately, the Supreme Court ruled that it can not overturn a ground clause in a mortgage loan taken out by a professional, but it must be proved that this which was introduced by surprise in the contract, breach of the principle of good faith and should assess the level of diligence required professional, in the circumstances of the case.

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