Upheld by the Supreme Court condemned 103 million at Bank of Ireland














The Supreme Court has upheld the conviction to pay some more 103 millones de euros a The Governor and Company of the Bank of Ireland y a Bank of Ireland Private Banking Limited por incumplimiento de un contrato de compraventa de acciones.

In May 2007, Procom S.A. Urban Development. Hypermarkets and Cecosa S.L. firmaron un contrato con The Governor and Company of the Bank of Ireland (involved to 100% en la sociedad Bank of Ireland Private Banking Limited) Forward-BOI-, by which they undertook to future sale of the company that was building the "Imperial Square" shopping complex in Zaragoza, whose opening was scheduled for the second half of 2008.

Vendors, had received offers from other prestigious institutions.

The complex would have a mall and leisure, with gas station and Eroski hypermarket (and contracted).

In the contract future purchase, how price calculation set, it would be a cap to 4,9% of income derived by local.

The contract had a number of conditions precedent including the approval of funding included. Recall that the conditions precedent are those whose performance determines the start of compulsory effectiveness of contract, unlike the termination conditions are those that compliance leads to termination of the contract or.

Accreditation of having funding should be before 7 June 2007.

The 7 June 2007, funding was approved by the Hypo Real Estate Bank.

The deadline was extended until 12 June 2007.

Considering that the condition el BOI paga 40 million euros to developers, ensuring their return to the case of default by two guarantees recognized financial institutions.

Later, Hypo Real Estate asks a series of conditions to BOI to provide funding.

In late September 2008, BOI representatives meet with the seller to inform them that Hypo Real Estate had not finally granted funding. Thus, considers that the condition precedent of obtaining the funding had not been met and therefore, May contract 2007 ya no les obligaba. Next, running the guarantees granted as security for the 40 million advance to the seller.

The seller filed a complaint seeking a declaration terminated the contract May 2007 by breach, applying to them both by indemnizase damages for lost profits as, as determined to make the evidentiary phase.

The Court of 1st Instance number 54 of Madrid partly estimated demand, declaring the contract terminated for breach of BOI, condemning compensate with 90.871.000 euros.

Both parties rely on appeal and the Madrid Provincial Court upheld the appeal of the selling, being increased the amount of compensation 103.535.250 euros.

The buyer, recourse to the Supreme Court, procedural infringements and appeal.

As for the appeal, misapplication of the doctrine of the alleged own actions. He says that the buyer agree to comply with the condition the seller by letter 12 June 2008, this condition is breached then preclude consideration. Namely, for BOI, the condition is fulfilled, and so it was recognized by the seller, and subsequent refusal to fund Hypo is a fact that depends on the will of a third (art.1115 CC).

For the TS, confirming the view of the audience, is contrary to good faith and loyalty contract a year later intends to argue that the condition precedent was not met.

Sending the letter to vendors BOI, assuming that the condition prevents subsequently be considered ineffective cart, when one is denied funding.

In terms of jurisprudence "sponsorship letters”, Hypo letters sent by the BOI generated in the seller confidence the fact that funding was granted.

The BOI also alleges non-culpable breach referred to in Article 1.184 CC. The Supreme Court replied that the difficulty in meeting should not be identified with impossibility referred to Article 1.184 CC: You need to concur objective complete and utter inability to meet the obligation. Also requires that Article changed circumstances extraordinary and unforeseeable completely rationally, that is not the case.

By the purchaser is also alleged, infringement of Article 1106 on compensation for damages, not enough to prove the lost profits of the seller. This, presented expert evidence on the profitability of similar projects. The Court finds no procedural violation.

Arguments of the buyer are also rejected violation of fundamental rights Item 24 of the Constitution.

Ultimately, The appeal is dismissed, condemnation of the Provincial Court confirmed the termination for breach with the compensation for damages and for costs to BOI.

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