Incumplimiento de la permuta de solar por viviendas

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Promotora ordered to pay for breach of contract for housing swap site

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In the context of a dispute between several owners and the company Reyal Urbis SA regarding the exchange of land for housing construction, the Supreme Court concurs estimated that failure of the construction not being given the same.

The decision has been adopted in the judgment of the First Chamber of the Tribunal Supremo Ollie # 601/2017, dictada en la fecha 08/11/2017.


D.ª zair, D. Victorino and D. ª Edurne, Dª Reyes, D. Casiano and D. ª Barbara were co-owners of a site that sent the corporation Reyal Urbis SA in 2004 in exchange for the construction and delivery of housing per share condo. Years later, without built without license, the construction site on mortgaged the benefit of third parties for purposes other than building, gravándolo a huge sum. Previous co-owners required notarially the contract termination, executed bank guarantees assurance that the builder had given amounting to 90,000 €, much lower than the main obligation of commercial quantity, consisting of the delivery of housing agreed.

That is why so, D. ª Zaira, D. Victorino and D. ª Edurne, Dª Reyes, D. Casiano and D. ª Barbara presented demand ordinary trial against commercial Reyal Urbis SA, requested that failure is declared concerning sales contracts concluded on buildings that were to be delivered, such sales contracts were declared resolved, while he condemned to pay compensation to claimants for damages and damages resulting thereof. Also, requested that the amount of compensation were set at received by each of the applicants based on the actual market value would have each of the houses that should have been delivered to claimants, in addition to the payment of default interest of compensation.

Moreover, the commercial Reyal Urbis SA opposed thereto, since it considered that it had not failed to fulfill its obligations under the contracts, requesting that a new time limit should be to fulfill the obligation to deliver housing.

Primera Instancia

The Court of First Instance No. 20 Valencia gave judgment of 01/09/2014, in rejecting the demand, absolving the company of all claims made in the application.


That sentence was appealed by the plaintiff, and Section 8 of the Provincial Court of Valencia mediante sentencia de 16/05/2015 He decided partially estimate its appeal declaring breach of Reyal Urbis S.A. with respect to sales contracts concluded with the appellants relating to housing that should have been delivered, declaring the defendant responsible for the breach.

The Audience, when deciding on compensation interprets, in the light of art. 1281.1 CC, that the amount of 90.000 € agreed in the 7th clause of the contract as collateral in case of default delivery obligations, compensation is a substitute of that obligation to deliver housing. Estimating the audience that the guarantee € 90,000 already received by the applicants, equivalent to compliance with the obligation guaranteed, and that failure could damage irrogar the buyer to which the contract relates, are other than those covered by the guarantee, and not having been claimed, estimates only partially the appeal, in the sense of declaring settled contracts for breach of the developer sued.

Supreme Court

D.ª zair, D. Victorino and D. ª made Edurne appeal contra esa sentencia, basing it on a single plea for breach of art. 1101 CC (in relation to art. 1256 and 1826.1) CC and interpretive jurisprudence of that provision concerning Solar swap contracts for future work judgments in No. 982/1991, of 30 December 1991 y n.º 94/2011, of 14 February, and considers that in the light of that case-law in the contract Solar exchange for work constructed, It can not be accepted that the builder can choose to comply by paying equivalence as the mere price of a guarantee, nor its liability for damages, when it violates the obligation, It may be limited only to the amount of collateral or guarantees.

Also, al amparo del art. 271.2 LEC, the appellant filed the judgment of the Supreme Court 405/2015, of 2 July, Relapse after his appearance. In it the same clause at issue is interpreted, in the sense that the interpretation making Hearing such back came including different concepts to those constituted by the failure itself, not only is not a literal interpretation of the contract as stated in the judgment under appeal, but contrary to such literal

Para resolver el recurso, the Supreme Court refers to the judgment, in which, going to the literal interpretation of the clause, and on the basis that contracts are classified as solar swap for future construction and dereliction of duty by Reyal Urbis, concludes: "If the clause, the 7. m of contracts, the parties stipulated that, also the guarantee for a maximum of 90.000 Spain euros Caja Duero-Caja paid in ensuring compliance with the obligations assumed by Reyal Urbis and the damages that the plaintiffs for breach irrogarían, these were reserved action to claim compensation for damages breach of the real estate irrogase them if and to the extent that the amounts received by execution of the collateral be insufficient to compensate them fully, the interpretation by the Court, in the sense that such a reservation referring to different concepts came to consist breach itself, not only is not a judgment under appeal, it is against such literalism. "

Therefore, the stipulation of constitution of guarantees for a maximum amount of 90,000 € was not a liquidating clause damages to limit compensation for suffered by the applicants, presuming a waiver of these restitution to those who exceed 90,000 € guaranteed by the endorsement.

After the previous exegesis, the Supreme Court considers that the judgment of the Provincial Court to be married. the appeal filed by the plaintiff against the judgment of first instance and demand in all its motions are estimated: The developer must compensate for all damages resulting from breach of contract swap site for future work.

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