Abuse of penitential earnest,,es,Territorial limiting clauses in the insurance contract,,es,The scales of insurers are limiting clauses,,es?

contrato de arras

The earnest money may be considered abusive if the regime contravene Article 1.454 Civil Code

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AP Palma de Mallorca remember that some earnest money may be considered abusive to the not be negotiated and introduce imbalances in rights and obligations to the detriment of the consumer.


D.ª Carina y D. Diego (plaintiffs) They signed the 27 July 2.015 booking contract with IB floors floor S.L.. (realestate), paying 5.000 € as part of the purchase price,by way of earnest money.

The mandates D.ª Aurelia was REAL ESTATE, who he was in this delicate state of salud.Por, INMOBILIARIA included a reserve clause in the contract for which it committed not to sell to someone else,

<<without involving a guarantee that it is sold, given the personal situation of the current owners>>.

Late 2.015, notarially required claimants to property to set the time and place of execution of the deed of sale. But it returned the earnest money and he cancels the contract, desistiendo unilaterally. Clause regulating them, established:

<<In case of withdrawal by the purchaser, it would lose the amounts made available to the seller as a deposit and down payment Price. If the seller desist, the buyer would recover the total amount delivered in this contract>>.

Primera instancia

Individual plaintiffs exercised action nullity by abusiveness clause, against property and proprietary. They argued that the clause introduced an imbalance in their detriment, to countering the regime arras of the art. 1454 CC:

<<If they had mediated arras or sign in the purchase and sale contract, the contract may be terminated acquiescing the buyer to lose, or the seller return double>>.

INMOBILIARIA declared that his only obligation was to make the building of your portfolio, what was accomplished. Also, He maintained that the contract was negotiated individually.

For his part, Ms Aurelia did not appear, It is declared in default.

The Lower Court No. 15 Palma de Mallorca demand the full estimated 2 March 2.017. So, He declared a nullity of the clause earnest money, REAL ESTATE condemning pay 5.000 € plus interest in respect of unilateral termination of the contract.

Second instance

INMOBILIARIA appealed,claiming:

1.- Lack of appreciation of the necessary joinder. It was intended that failure was attributable only to the seller.

2.- Erroneous assessment of evidence, to the controversial contract has been individually negotiated.

He resolved the Section 5 of the Audiencia Provincial de Palma de Mallorca, en Sentencia n.º 25/2018, of 26 January 2.018, that addressed the following legal aspects.

Test review

He said the Tribunal shared the interpretation of the Court of First Instance, which it allowed to refer to their legal arguments to dismiss the appeal examined. He pointed, also, the moments that should consist protest or allegations during the trial.

It was accepted, therefore, of First Instance:

  • That the contract was for membership.
  • Ms Aurelia who did not sign the contract, nor felt the amount delivered.

passive joinder necessary

Regarding the exception of passive joinder necessary, the Court cited its own Judgment No. 398/2006, of 22 September 2.006:

<<the lack of accreditation of communication by the real estate agency to the seller of the existence of the contract signed by the first arras as president of the second is a breach of its contractual obligations to the actor, which It implies responsibility. Responsibility for the co-defendants in relation to the applicant now considered to be solidaria>>.

the exception is so dismissed, to the left was proven that the ESTATE who, unilaterally, He drafted the contract and saw the arras.

applicable law

The Court brought up the doctrine of the Supreme, in Sentencing 24 de noviembre y 15 and 21 April 2.014, he pointed:

1.- That to the contracts negotiated with consumers held not control abusiveness must be done, founded on principles of good faith and fair balance.

2.- That the imbalance derivative is not abusive clauses negotiated, within the meaning of art. 3.1 Directive 1993/13 / EEC, and consumer protection law (prior art. 10 to, now arts. 82 et seq.).

3.- That, in our system, control is performed by a general clause system and "blacklist".

And, accordingly,

<<to decide whether a contractual term not individually negotiated, inserted in a contract entered into with consumers, It may be considered abusive or, methodologically it is more efficient to analyze first if you can fit into any of the cases exemplifying that the law considers abusive “in any case”, so if so declaring and their abusiveness, consequently, its nullity, and only if otherwise will then assess their abusiveness based on the general clause>>.

Thus, only enters the art will appreciate. 82.1 TRLGDCU if the clause is not blacklisted. And in this case, the amounts of the penitential clause and compensation will be compared to determine whether or not concur abuse.


In this case, INMOBILIARIA introduced an imbalance in the reservation contract. Contravened Article. 1.454 CC, to the reserve the right to unilateral termination without returning the duplicate arras. This became abusive clause in, which he meant that the invalidity will be determined in the clause and sentence him to return any remaining 5.000 €.

This was determined by the District Court and upheld the Provincial Court of Palma de Mallorca, a judgment collecting efficient mode of determining the occurrence of the abusiveness in general clauses.

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