Clausula soil in professional: New nullity in Valencia

ground clause businesses


The Provincial Court of Valencia confirms the possibility of declaring the nullity of the clause floor in loans contracted by professionals.

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The Ninth Section of the Provincial Court of Valencia has confirmed the nullity of a clause floor in a home equity loan arranged by two pharmacists with Bancofar (subsequently succeeded by Bankia) Judgment seven in February 2017.

The 21 September 2016, two professional pharmacy Bancofar concluded with three mortgage loans with an interest rate of Euribor more 0,65 points. However in the stipulation Third Bis indicated that "in no case, the annual nominal interest rate applicable to each loan will be less than 3,5 % Annual or above 15% annual, whatever the rate resulting from application of the mechanisms agreed review ".

Los prestatarios interpusieron demanda solicitando la nulidad de dichas “cláusulas suelo” tanto por abusivas, under Article 82 the TRLGDCU, as for breach of Article 7 the LCGC, y la devolución de las cantidades indebidamente pagadas como consecuencia de las mismas.

The bank claimed that borrowers They not are acting as consumers and that habían sido negociadas e incorporadas a los contratos de una manera válida y transparente.

The Commercial Court No. 3 Valencia on date 30 May 2016 He declared invalid for lack of transparency of the clause, ceiling in point 5 of third-bis clause with the title "Limit interest rate variation" setting a minimum 3,5% whatever the result type. He understood that although borrowers did not act as consumers (and therefore need not exceed transparency control material), ground clause does not pass the "incorporation control" by the lack of any information on such a pact. Therefore, declared invalid the ground based on the provisions in Articles 5, 7 and 8.1 the LCGC.

The Provincial Court confirms the judgment of the first instance, based on the following considerations.

Plaintiffs, They did not intervene with the quality of consumer, when three loans related to his professional activity Pharmaceutical. Este hecho, exclude the control of transparency material or real understanding. But this does not exclude that it can check whether it has complied with other limits, namely:

1.- The demands of Law of General Conditions of Contract, which they are applicable both among consumers as when the contract is concluded between professionals: agreements must be entered correctly (following the provisions in Articles 5 and 7 the LCGC).

2.- Must be respected any contract limits are like the law, morality and public order imperative under Article 1255 Civil Code.

3.- The Commercial Code.

Hearing brings up the Judgment of the Supreme Court 18 January 2017 (we discussed here), in its sixth legal basis, gives the basis for the annulment of the clause floor when the borrower is professional or company: Respect for the principle of good faith, prevents the validity of clauses:

"Surreptitiously modify the content that the stick had been represented as agreed under nature itself and the functionality of contract; in the sense that it may be contrary to good faith try to take advantage of the predisposition, taxation and lack of negotiating clauses that harm the adherent ".

And it comes to add that, pursuant to Article 1258 CC, null would be "surprising pacts" that are contrary to the legitimate expectations of the parties.

Even beyond the internal regulation, the invalidity of such provision surprise soil would be based on the Principles of European Contract Law, made by the Committee of European Law of Contracts, establishing the general operating principle of good faith in hiring (art. 1:201) and provide 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); and do not allow content control clauses regarding "embody the main object of the contract, provided that such clause is drafted in a clear and understandable manner ", or the suitability of the value of the obligations of both sides (art. 4:110,2).

Hiring a loan with a variable rate and the inclusion of a soil merit rating "Surprising clause": The case law in other areas, especially in relation to the insurance contract, considers invalid stipulations that under the circumstances and nature of the contract, are so unusual that the adhesive could not reasonably foreseen if any.

The other two elements to consider are the abuso de posición dominante (to which the preamble refers the LCGC) and level of information provided because as the High Court indicates:

"For correct information exclude the surprise factor, 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.”

For particular, Hearing indicates that failure to comply with the requirements for incorporation overcome control is not affected by the condition not professional borrower nor their amount or that are parents of other business:

"Nothing affects this premise (regulated by Articles 5 and 7 cited above), the status of pharmacist actor, the pharmacy business, or high amount of each loan or are parents of other business, But that among professionals, contract becomes valid serial, It is necessary to meet the above legal requirements and ensure that accession clauses are incorporated under the parameters of good faith as discussed avoiding the "surprising clause". The predisposing under Article 5-2 the LCGC, You should expressly inform the adherent of the existence of such a general clause. Knowledge of the contractual incorporation must be examined, therefore, to the circumstances of the contract in question. "

Namely, the bank must expressly report the existence of the clause floor, and should assess the circumstances of each case.

To prove that the clause was negotiated soil, Hearing indicates that not serve the "mere subjective assessments" as the plaintiffs were used to formalize legal transactions or amount of mortgaged properties (which in this case they were a total of nine).

And if all this were not enough, it follows that in own text of the three public deeds, indication it included "The borrowing party has not been entitled to consider the draft deed of mortgage loan in his office for three business days after its execution taking in the notice itself".

So it is solidly proven the absence of negotiations clause floor.

Ninth Section, clarifies that the ground clause is not illegal or contrary to public policy, but in this case, Failure to comply with the requirements for correct transposition of Article 5 and 7 the LCGC.

Ultimately, the appeal is dismissed Bankia, and the judgment of the first instance declares confirmed the nullity of ground clauses in mortgage loans contracted by professionals pharmacists in the case and ordered the return of amounts paid in excess of statutory interest, Imposed pay the costs of the bank.

It is not going to produce a generalized statement of the floor clauses in subsidized loans for companies and professionals. But in cases specific, when they have been introduced by surprise and without prior negotiation, in the circumstances of the case, it is possible to obtain a declaration of invalidity and the recovery of overpayments.

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