The accumulation of penalty clause for damages requires express agreement

compraventa vivienda


You can build up to the penalty clause agreed, compensation for damages for breach of contract?

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The Supreme Court, in Case 3 July 2019, No.. resolution 387/2019, reminds us that to accumulate the penalty clause agreed, compensation for damages, there must be an express agreement in this regard also credited such damages.

Fact background,,es,Juan Alberto and Paulina filed suit against FTA,,es,Asset Securitization Fund,,es,requesting the declaration of nullity for abusive of the floor and ceiling clauses contained in the novation contract of the mortgage loan of,,es,with the corresponding refund of amounts unduly collected,,es,The Securitization Fund Management Company,,es,Beech,,es,acting on behalf of FTA, he responded to said claim alleging that he lacked passive legitimacy since the entity had no legal personality and that it constituted only a private and open fund and that therefore the passive legitimization corresponded to BBVA as successor of Catalunya Banc that was the Company fund constituent,,es

The 21 April 2006 Ms.. Filomena and D. Jenaro entered into a contrato de compraventa de vivienda -pending house-building with commercial Edivama SA.

The price set for the sale was 336.408 euros. Delivered to buyers account the amount of 59.285 euros.

It was agreed that housing would be delivered before the day 15 March 2008. If past that date housing had not been delivered, the buyer could choose to require the seller to delivery or termination of the contract.

The deadline was missed by the seller. Buyers interested lawsuit filed a declaration breached the contract and be ordered to refund the amounts paid on account of price.

The 30 June 2010 11th Section of the Provincial Court of Valencia handed down its judgment. He rejected the claim of buyers and declared valid and effective contract of sale. He condemned the actors to grant deed and payment of 277.177 euros, as the rest of the price to pay.

In the month of June 2013 the seller gave buyers a burofax. In this they demanded the payment of various sums of money and also asked them to appear before the notary public deed to grant.

Buyers sent another burofax which communicated its intention to fulfill commitments. And the embroidery, They required the vendor to allow them access to housing for the tasara an expert and obtain a mortgage loan.

October 2013 notarial buyers received a communication from the seller. They were notified of the termination of the contract of sale because they had not answered any of the requirements or had gone to the notary.

The saleswoman Edivama SA proceeded to sell the property to a third party under contract.

The 14 July 2015 buyers filed suit against Edivama SA. They requested the termination of the contract is declared not in accordance with law,  it was the seller who had breached the contract and that the decision came at the request of buyers due to the breach. They also called for the sentence to Edivama SA buyers to return the amount paid for 61.400 euros, more him 3% by application of the penalty clause and interest.

Edivama SA opposed the demand. He made a counterclaim and sought a declaration according to law resolution by its part. También, it was appropriate to have endorsed the amount of 61.400 euros received by buyers.

Primera Instancia

The 25 April 2016 the Court of First Instance No. 3 Valencia gave judgment dismissing both the demand and the counterclaim raised.

Provincial Court

The plaintiffs appealed the first instance judgment on appeal.

For his part, the defendant objected and also challenged the ruling regarding the dismissal of the counterclaim.

The 2 December 2016 6th Section of the Provincial Court of Valencia dismissed the appeal made. So good, estimated the challenge posed by Edivama SA.

Thus, He overturned the lower court ruling concerning the counterclaim, estimating the latter in its entirety.

Told the audience that the contract termination by Edivama It was consistent with the law. So, It was entitled to retain the amount of 61.400 euros received from buyers. This is for application of the clause seventh of the AGB and the existence of injury to sell the property to a third party for a price much lower than that agreed with the plaintiffs.

Supreme Court

The plaintiffs appealed the sentence for procedural infringement and appeals. He raised a legal issue that generated the interest cassation: the possibility of accumulating the application of the penalty clause for the seller agreed compensation for damages caused carryforwards that have been higher.

SA Edivama the defendant opposed the application. Cassation alleged lack of interest.

The 2 July 2019 the Supreme Court delivered its judgment No.. resolution 387/2019 resolving the dispute.

The action for procedural infringement:

The Chamber upheld the appeal for procedural infringement. It was true that the contested judgment contravened the requirement to state reasons exhaustive of art. 218 LEC. Therefore there was a clear procedural violation that had assumed its annulment.

On appeal:

The resource request was the statement inappropriateness of compensation for damages to Evidama beyond the result of applying the penal clause in the contract. Opposing therefore a cumulative application yes applied the first instance judgment.

The penalty clause was a prearranged contract by the seller clause as a general condition of the contract. Provided as indemnity, a 3% on the amount that should have been paid by buyers at the time of the resolution. This retention 3% had one compensatory purpose of the damages caused by the breach, without appropriate compensation extend beyond.

The seller claimed economic loss from the sale to a third party. But he could foreclose demand condemning buyers to raise public deed and satisfy the outstanding contract price. So good, it did not.

Hall said Judgment No.. 197/2016, of 30 March, by which "Only exceptionally it operates the cumulative function, when expressly it agreed that the creditor can demand compensation for damages caused and proven and, also, it agreed as a penalty clause…So, only when I express it mediates pact will not be a substitute for compensation but cumulatively, so that the creditor may require the debtor, plus the penalty stipulated, compensation for damages caused, but always they have been tested (because unlike the penalty clause contained in criminal, where no tests are required some, the compensation ordered with that is subject to the general rules of evidence Art. 217.2 LEC )…Conversely, in the absence of agreement about, doctrine has said only operates the settlement function and, so, the STS 21 February 2012, rec. 21/2009, states that “if the parties, voluntarily and for the sake of the principle of autonomy which proclaims Article 1255 civil condigo They have agreed a penalty clause, They must abide by the liquidating function imposed by the aforementioned Article 1152, They are having failed to agree on which they did- cumulative function It is allowing the last paragraph of this article”.

Therefore, the Chamber considered compensation for damages had to be reduced to the amount resulting from applying the 3% the amounts that should have been delivered by purchasers at the time of the resolution.

Accordance with the law declared the termination of the contract concluded by the parties on 21 April 2006, performed by Edivama S.A. and communicated the 31 October 2013, meanwhile entitled to retain the amount of 8.315,31 euros of satisfied buyers.
And he condemned Edivama S.A. buyers to return the remaining amount of 53.084,69 euros plus legal interest from the 31 October 2013.


Only shall the cumulative application of a penalty clause along with compensation for damages when it has been expressly agreed between the parties and the damages are tested. In the absence of an express agreement, it will not be cumulative of compensation, but substitutive function and ejerccerá its liquidator Article 1152 CC.

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