When is the deadline to claim a swap?

 abogado swap

The Supreme Court reiterates that the four-year period begins from the expiration of the swap

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En los contratos de permuta financiera o “swaps” no hay consumación del contrato hasta que no se produce el agotamiento o extinción de la relación contractual. Is at that time, when the performance of the benefits by both parties and the effective production of the economic consequences of the contract takes place. The four-year period for claiming the cancellation by mistake then begins to count. All of it, without prejudice to the five-year period for claiming compensation for damages.

The Civil Chamber of the Supreme Court has reiterated said doctrine in a ruling on 20 October 2020, with Resolution No. 542/2020.

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 11 September 2007 AIROTEC, S.A. y FANAIR, S.L., signed a financial risk management contract or Clip Bankinter contract, expiration date 11 March 2011.

AIROTEC and FANAIR filed a lawsuit on the nullity of the financial swap contract against BANKINTER, S.A. They requested the restitution of 58.000 € of principal, plus the legal interest generated from the collection of each of the amounts until their return.

Primera Instancia

The Court of First Instance No. 6 of Fuenlabrada issued sentence on 4 January 2017, estimating AIROTEC and FANAIR's claim against BANKINTER, S.A.

Declared the nullity of the financial risk management contract due to an error in the consent given by AIROTEC and FANAIR.

Condemned BANKINTER, S.A., to restituir 58.000 €, plus accrued legal interest, plus interest at the legal rate of money increased by two points.

Provincial Court

BANKINTER, S.A., interpuso recurso de apelación.

The 18th Section of the Provincial Court of Madrid issued a ruling on 30 October 2017, estimating the appeal. Declared the expiration of the action for annulment due to an error in the consent, absolving BANKINTER, S.A.

Supreme Court

AIROTEC and FANAIR filed an extraordinary appeal for procedural infringement and appeal for cassation interest.

The extraordinary appeal for procedural infringement was dismissed.

Only the second motive was admitted from the appeal, where they alleged the violation of arts. 1301 and 3 CCivil, as well as the art. 9.3. EC, regarding the setting of the “dies a quo”Of the four-year term for the exercise of the annulment action.

The Chamber brought up seated doctrine, understanding that:

“For the purposes of exercising the nullity action by mistake, the consummation of the swap contracts must understood as produced at the time of exhaustion, of the termination of the contract. In the swap contract the client does not receive in a single and punctual moment an essential service with which he can identify the consummation of the contract, Unlike what happens in other successive tract contracts such as the lease (regarding which, how did the sentence settle 339/2016, of 24 May, that moment takes place when the landlord assigns the thing in conditions of use or peaceful enjoyment, because from that moment his Obligation to return the property at the end of the lease as received and is responsible for its deterioration or loss, in the same way that the lessor is obliged to keep the tenant in peaceful enjoyment of the lease for the term of the contract). En los contratos de swaps ocobertura de hipoteca” there is no consummation of the contract until the exhaustion or termination of the contractual relationship occurs, as this is when the performance of the benefits by both parties takes place and the effective production of the economic consequences of the contract. This is due to the fact that these contracts do not there are fixed benefits, but variable settlements in favor of one or another contractor at any time in función de la evolución de los tipos de interés”.

Conclusion

The four-year period to claim the nullity of a swap does not start until consummation. In interest rate swap contracts there is no consummation of the contract until the exhaustion or termination of the contractual relationship occurs, because it is at that time of expiration, when the performance of the benefits by both parties and the effective production of the economic consequences of the contract takes place.

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