Clip Bankinter: Nueva sentencia del Supremo

clip bankinter

The Supreme Court again confirmed the error of consent placing a Clip Bankinter

 

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This time has been no ruling 692/2017 the Civil Chamber of the Supreme Court, of 20 December 2017.

The company Cerney, S.A. lawsuit filed requesting the annulment of a financial swap agreement, commercially called Clip Bankinter and renovaciiones, of the year 2007 and 2009 respectively. The plaintiff alleges that existed:

*substantial error in the consent given

*Cause lack of unlawfulness or falsity of the same

These arguments were assessed by the first instance and their respective raised, dismissing the lawsuit and appeal.

The applicant signed two contracts swap with dates 3 March 2007 and 1 July 2009, products being considered as complex and difficult to understand, so the bank was obliged to provide the customer all the information necessary for understanding the Clip.

The lack of information from the bank becomes the main argument of the plaintiff, considering that there was error in consent to the failure to inform the bank about the true risks and nature of the contract.

The applicant's claim was the cancellation of the contracts referred, with the consequent return of the sum of 73.296,48 euros charged quarterly liquidations plus statutory interest.

The Court of First Instance and the Audiencia Provincial de Zaragoza dismissed the claim Cerney S.A. to considering that there was no error and that the contract, really, He had a cause.

However, to the filed the appeal, the criterion of the Supreme Court remains consistent in this type of case, to consider the existence of the error in the consent on the basis of the following arguments:

1.- Sin conocimientos expertos en el mercado de valores, the client can not know what specific information should require professional. Conversely, the client must be confident that the service entity that advises investment is not omitting information on any relevant issue.

2.-The legally obligated party can not object to correctly report that whoever was entitled to correct information that must take the initiative and provided information on their own.

3.-Companies such as Bankinter must act in the exercise of their activities impartially and in good faith, without putting their own interests to those of their customers, en beneficio de éstos y del buen funcionamiento del mercado, realizando sus operaciones con cuidado y diligencia, según las estrictas instrucciones de sus clientes, de quienes debían solicitar información sobre su situación financiera, investment experience and investment objectives.

4.-The Client information must be clear, correct, need, and given sufficient time to prevent incorrect interpretation and emphasis on every operation carries risks, especially in high-risk financial products, so that the customer knows precisely the purpose of the operation that hires.

5.-Are already multiple sentences Hall Civil Court has consistently held that make constant, and the contents of which are ateniendo, they consider that a breach of that legislation, mainly in terms of information risks inherent in swap contracts, both as regards the possibility of periodic settlements negative in large amount as a high cost also cancellation, you can presume the error in who contracted with this information deficit.

6.-Based on the proven facts in the instance, You can not appreciate that the financial institution fulfilled the duties of information we have seen that established the applicable law on the date of conclusion of the disputed contracts; and from that point of view, the judgment under appeal opposes the jurisprudence of this room and,

7.-Specifically not practiced fitness test.

Another interesting aspect is related to the chaining contracts, under which it can not be considered a validation of flawed consent, taking into account that they are part of the same legal business at the discretion of the Board.

Therefore, the Chamber decides as follows: "Given that (sic) the judgment under appeal opposes the uniform jurisprudence of this room on information and consent provision in the swap agreements, should the appeal succeed, set aside the judgment under appeal, and estimating demand ( Arts. 1300 and 1301 of C. Civil ).”

In conclusion, It is declared invalid by mistake consent in hiring contracts “Clip Bankinter” and repayment of amounts paid by ordering the negative effect of liquidations.

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