¿Puede ser consumidor el fiador de una empresa?

clausula afianzamiento

The consumer guarantor maintains that condition in a loan to a company

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Guarantors of a loan made by a company, They can be considered consumers and be protected from unfair terms. For this, the sureties must be unrelated to the business side of the operation.

personal loan contract was signed between a corporation and a bank. They strengthened the loan's parents administrator. Produced breach of the contract for default, the company filed lawsuit. Detents claimed as consumers and therefore, special protection against unfair terms inserted in the contract.

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 30 July 2015 D. Ernesto entered into a fixed interest rate personal loan ICO- companies and entrepreneurs 2016 with commercial BANCO SANTANDER S.A.

The amount granted was 17.000 euros. He noticed the maturity date 30 July 2019. a fixed remuneration interest PACT 4,628% and delay 10 points more than the retributive.

Ms.. Ariadna and D. Constantino were guarantors of the contract business loan for your child.

Given the non-payment of installments agreed, BANCO SANTANDER filed a lawsuit against D. Ernesto, Ms.. Ariadna and D. Constantino.

Ms.. Ariadna and D. Constantino alleged error endorsed the policy as sureties. Sported the status of consumers and argued that concurred in abusive contract clauses.

D. Ernesto alleged the invalidity of the general conditions of the covenant of the early maturity, default interest and fee claim liability positions.

Primera Instancia

The 21 May 2018, the Court of First Instance No. 4 of Requena, fully estimated the demand made by the bank. He condemned D. Ernesto, Ms.. Ariadna and D. Constantine solidarity payment 14.263,97 principal euros, más intereses.

Provincial Court

Ms.. Ariadna and D. Constantine appealed. They alleged error in the determination of his intervention in the contract. They claimed that consumers were so proceeded to analyze the abusive nature of certain clauses, including, those of the early maturity.

The 26 March 2019, 9th Section of the Provincial Court of Valencia, He gave judgment No.. 368/2019 estimating part the use.

On the status of consumers.

Hearing determined, the fact that sears in the loan agreement called for his son for his company not supposed "Feet " as consumers lose. So, He cited the Order of the Court of 19 November 2015, Case C-74/15, determining that "Articles 1, apparatus 1, and 2, letra b), Directive 93/13 They are interpreted that that directive may apply to a contract of real estate collateral or guarantee concluded between an individual and a credit institution to guarantee the obligations that a corporation has assumed contractually against that entity under a credit agreement, when that person physically acting for purposes which are outside his professional activity and lacks functional links with that company”.

This line had forced the Supreme Court to position, in particular in its judgment of 28 May 2018, by which "Directive 93/13 / EEC defines the contracts to which it applies depending on the condition of the Contracting, or act as market their professional activity, as a mechanism to ensure the protection system established by the directive ". He added that the CJEU "protection is especially important in the case of a surety or bond held between a financial institution and a consumer, since such a contract is based, indeed, a personal commitment to the guarantor or the guarantor to repay the debt assumed by a third party contract ... which have the effect encumber their own assets with a financial risk…”.

So, He explained the CJEU, appointment of the judgment Dietzinger (STJCE of 17 March 1998) que “While the security agreement or bond may qualify, in terms of their purpose, accessory contract with respect to the main credit agreement which emanates debt guarantees, the truth is, from the point of view of the contracting parties, It is presented as a different contract <<as it is between persons other than the parties to the final contract>>…accordingly consumer status must be assessed, not in the main contract, but in the guarantee contract or bond”.

However, the ECJ ruled as a consumer when "still acting on the margin of a professional or business activity, it has a <<functional link>> contracting with professional; namely, It is not someone else's mostly professional or business side of the operation. Therefore, the question was specify, for each intervening sear, if they had or not functional relationship with the debtor company.

El Auto part TWENTY, already mentioned, of 19 November 2015, to the respect he noted that "in the case of an individual who acted as guarantor for the implementation of the obligations of a corporation, corresponds to the national court to determine whether that person acted within the framework of his professional activity or because of functional linkages it has with that company…”.

Hearing determined, Pursuant to arts. 2 and 3 of the TRLGDCU it should be affirmed as consumers of both tumblers. They were the parents of the debtor, no dedication or business or professional activity. Outside business activity undertaken by the son in which neither participated nor intervened, directly or indirectly.

On the unfair term expiration of the pact anticipated.

The Court determined that the abusiveness of the clause in a contract between professional and consumer could be adopted by two-way. La primera, for being among the Directive 93/13 / EEC relating to Annex as indicative and the arts. 85 a 91 of the TRLCDCU set as mandatory. La segunda, by applying the general criteria abusiveness (art. 3.1 and 4.1 Directive and art. 82 the TRLGDCU).

The covenant of the early termination for breach of the essential obligations of the contract, he was not among the provisions of the Directive. Not on the blacklist so-called Spanish law.

Under Art. 4.1 Directive, the unfairness of a contractual term shall be assessed taking into account "the nature of the goods or services which are the subject of the contract and considering, en el momento de la celebración del mismo, all the circumstances attending the conclusion ".

The loan was not the case with mortgage policy. Nor was from the application of the criteria for modulating the unfairness set by the ECJ in its judgment of 14 harness 2014 and car 11 June 2015. This is because, did not have the loan amount or a relevant long life. Also, He was not directly linked to the housing loan borrower consumer. It was a personal loan that was not long-lasting, and relatively low amount.

He concluded the hearing that neither the agreement in its literalness, or its implementation, presented evidence to be taken by abusive.

About the unfairness of interest for late payment.

The Court cited the STS 28 November 2018, He is saying "This court found that, in the absence of a legal provision to fix imperatively the criteria applicable to control their abusiveness ... interest for late payment set out in clauses not negotiated in consumer contracts should consist, not to be abusive, an additional percentage not exceeding two percentage points above the interest remuneratorio. If default interest is fixed above this percentage, the clause established is abusive”.

On the result of a clause setting a delay abusive interest, He determined the judgment of the ECJ 7 August 2018 que “... the result ... is the total suppression of default interest, no longer accrue remunerative interest agreed in the contract”.

For Hearing,  It was at an unfair term because it exceeded the limit of two points above the interest compensation. Therefore, conforme al art. 85.6 TRLGDCU, the clause was invalid and should be understood as not included. It was clearly disproportionate and would undermine consumer.

Commission on debt positions.

The contract amount per claim fixed a debit positions 39 euros for once and for each quantity sold and claimed.

The Court determined that such agreements had already been declared abusive by the same ninth Section. He cited Case 13 June 2018 (Rollo 60/2018) by which: “The truth is that the delay or non-payment of installments of the mortgage loan is the legal system response in the accrual of default interest, as a penalty, and el mero hecho del retraso o impago no genera ningún servicio bancario cuyo pago deba asumir el prestatario. (…) La consecuencia de la declaración de nulidad será la expulsión del contrato de dicha cláusula, quedando el resto en vigor”.

No existió así, razón para el doble gravamen (interés de demora y comisión de posición deudora). Se estaba ante una cláusula abusiva e ineficaz frente a los fiadores.

For all the above, la Audiencia estimó parcialmente el recurso. Ratificó la condena respecto a D. Ernesto. He condemned Dña. Ariadna and D. Constantino a abonar solidariamente con el deudor, the amount of 14.263,97 primary, con el interés retributivo. Sin abono de comisión por reclamación de posiciones deudoras.

Conclusion

En los contratos de préstamo suscritos por una empresa, los fiadores pueden ostentar la condición de consumidores si no tienen una vinculación funcional con la sociedad deudora. Then, pueden solicitar la inaplicación de las cláusulas abusivas.

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