Purchase settled by lack of subrogation

Subrogacion hipoteca inmueble

Denial of subrogation in the mortgage by the bank is a supervening event impossibility of performance of the contract, when the developer was obliged to get

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The Civil Chamber of the Supreme Court, in Case 17 December 2019, with no resolution 677/2019, He dismissed an appeal by the developer-selling, Widman, S.L., to considering the appeal, unfounded manifestly, He not sustained because the reason given, to combat the interpretation of the “ratio decidendi”. The Audiencia Provincial de Murcia, I consider that, in accordance with the provisions of the private document signed purchase by Widman, S.L. and D. Jose Pablo and Mrs.. Modesta, the price would be met by subrogation buyers in the loan promoter he was managing the applicant so, granted the loan, It was the refusal of the Bank to grant subrogation which prevented buyers pay the price, proceeding to terminate the contract by supervening impossibility, for breach of the seller.

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 9 March 2007, Widman, S.L., as promoter-selling, y D. Jose Pablo and Mrs.. Modesta, as buyers, They signed a sales contract private property under construction.

The buyer made three payments in advance, amounting 29.000 euros, plus 2.030 euros, in VAT.

The 16 December 2009, Part selling them sent a communication, where they were informed buyers in November obtaining the certificate of first occupation, and it required them to otorgasen public deed and pay the rest of the price.

Buyers did not make payment, because the contract of sale provided that payment of the outstanding price would be met in the event that the selling party obtains the mortgage loan, by subrogation buyers. The financial institution had refused to make such subrogation, so the buyers decided to terminate the contract for breach of the same by the seller. However, the developer did not want them to repay the amounts delivered.

The 2 June 2011, Widman, S.L. filed lawsuit, which it was distributed to the Court of First Instance No. 2 Lorca. He sought an order to the buyer to pay him, in respect of pending payment price plus VAT, 159.001,01 euros, plus compensation for damages caused by the breach of contract. it also raised public write the contract.

Primera Instancia

The Court of First Instance No. 2 Lorca gave judgment on 12 November 2015. It dismissed the application for Widman, S.L., and estimated full counterclaims D. Jose Pablo and Mrs.. Modesta. He declared the contract of sale, and he condemned Widman, S.L., to restore to the buyers 29.000 euros plus 2.030 euros in VAT, plus legal interest and costs of the procedure.

The Court relied on the interpretation of the contract. It considered that the intention of the parties, under the terms of the contract, It was that the buyer could subrogate, creating expectations. The reason why the bank refused to subrogation fell on the economic conditions of buyers. The buyer had the right to terminate the contract breach of the seller, the latter must repay the amount given at the time.

Real estate agency appealed.

Provincial Court

The Section 4 of the Provincial Court of Murcia gave judgment on 7 November 2016, dismissing the appeal brought by Widman, S.L.

The Audiencia Provincial found that the buyers wanted to buy housing in exchange for which they were subrogated to the mortgage loan. There were no nonperforming willingness of buyers. He interpreted the contract of sale. For Section, in contract it was established that the price would be met by the subrogation of the loan buyers. The bank declined to such subrogation, so the buyers could not pay the price. He also claimed that the sales contract itself foresaw the possibility of resolution by the buyer in case of delay by the seller.

He concluded that the contract was terminated by supervening impossibility, and he agreed to the repayment of amounts delivered in time.

Widman, S.L. He appealed the sentence.

Supreme Court

Widman, S.L. filed appeal, claiming infracción de los artículos 1105, 1124, 1182 and 1184 Civil Code, justifying appellate interest by citing several judgments of the Supreme Court, as, for example, STS 820/2013, of 17 January, inter.

The Supreme Court gave judgment on 17 December 2019, dismissing the appeal. He confirmed the judgment handed down by the Audiencia Provincial de Murcia, section 4, the 7 November 2016. He condemned to pay the costs Widman, S.L.

He wildman considered that the subrogation in the mortgage loan was an alternative that was offered to the buyer, not an obligation assumed by the seller. In the sale of housing should be considered prior information to the contract, especially regarding the price, on integration of supply, promotion and publicity and interpretation and integration of contracts with general conditions.

El TS "It has reiterated that interpretation must be maintained that the contract makes the trial court, although not the only possible, por sermás objetiva y desinteresadaque lamás subjetiva y parcialdel recurrente. (…) It is possible to estimate the appeal as a legal question posed by the interpretation of the contract when it is absurd, arbitrary, Illogical or infringes legal provisions (so, in sentences 498/2018, of 14 September, 82/2019, of 7 February, 251/2019, of 6 May, and 266/2019, of 10 May).»

In the judgment, TS highlighted the STS 577/2019, of 5 November, for doctrine summed room, stating that Como recuerda la sentencia 453/2018, of 18 July, appointment of the judgment 344/2018, of 7 June, He has declared the room, to decide on the admission of appeals, que debe combatirse en ellos únicamente los argumentos empleados para resolver las cuestiones objeto de debate que constituyan “ratio decidendi” (cars 30 October 4 December 2007). Quedan excluidos los argumentosobiter”, a “mayor abundamiento” the “de refuerzo” (SSTS número 362/2011 of 7 June, and 327/2010, of 22 June, inter). The challenge must be directed against the grounds of the order that has critical or decisive nature of the error, namely, que constituya “ratio decidendi” (SSTS 238/2007, of 27 November; 1348/2007, of 12 December; 53/2008 of 25 January; 58/2008, of 25 January; 597/2008, of 20 June, inter)”.

In this particular case, for TS, the contested judgments in first and second instance, They based their rulings on the interpretation of the terms of the purchase agreement, for, by the lower courts, was chosen the most favorable interpretation for the consumer, concluding that the subrogation clause in the mortgage loan, where personal assumption was assumed debt, he referred only to the case in which the selling party did not obtain the loan was negotiating, not being applicable in the event that the developer did not obtain funding. Therefore, the only commitment of the purchaser was to assume that the payment of the cash price would be done by subrogation the loan. However, the bank prevented.

Widman, S.L. He filed an appeal claiming the inadmissibility of the doctrine of impossibility and undue clause "rebus", without contesting the interpretation of the contract. He set a budget that is contrary to the interpretation reached by the judgment handed down by the Audiencia Provincial.

For the TS, the appeal lacked merit manifestly. The appellant did not dispute the interpretation in the plea, without justifying the requirements that allow review on appeal the interpretation of the court "a quo".


In contracts of sale of property off plan, the refusal by the bank to subrogation buyers in the mortgage signed by the developer, when he agrees to get,  equivalent to a supervening event impossibility of performance of the contract.

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