Nullity of a consolidation clause in Madrid,,es,Nullity of a clause of entrenchment in Madrid,,es,About sales outside the zone in the franchise agreement,,es,Life insurance and health questionnaire in Pontevedra,,es,Concerning the sentencing in costs in case of estimation of a subsidiary petition,,es,About the condition in the cost of a subsidiary petition,,es,On the absence of unfair delay,,es

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Customers should be informed by the bank of the consequences of entrenchment clauses

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Entrenchment clauses waiving the benefits of order, division and excussion, the sear placed in a very disadvantageous position as legal, the creditor may claim directly against him without requiring prior to the debtor. The bank is obliged to inform their customers of the consequences underwrite certain covenants, under penalty of nullity. This time, discussed the sentence of the tenth section of the Provincial Court of Madrid 29 January 2019 que confirma la nullity of a clause consolidation.

D. Porfirio signed a loan agreement which bought the company LC ASSET 1, SARL. His mother, Ms. Felicidad participated as guarantor. So good, it was sordomuda. Ms. Felicidad accepted a cláusula de afianzamiento Of the debt, in which rights renounced order,  excusión y división who he held as surety. Namely, the creditor could demand directly to it without requiring prior to the debtor. The bank did not fulfill its obligation to inform customers about the products they hire and the consequences thereof. Ms. Felicidad was not informed about the legal consequences that waiver behaved.

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 February 2006, D. Porfirio he signed, as borrower and principal debtor, a loan agreement to finance the purchase of vehicle, LC acquired after ASSET 1, SARL (onwards, LC ASSET).

His mother, Ms. Happiness, It was linked to the contract as a guarantor. He suffered from sordomudez.

Before defaulting on the deadlines specified in the contract, ASSET LC filed a request for payment procedure. Finally, It became a standard procedure Claim amount. LC ASSET requested payment of the amount of 13.034,08 euros for solidarity among. Porfirio and Mrs. Felicidad.

Ms. Felicidad opposed the demand. He alleged the invalidity of the consent given regarding the consolidation pact inserted into the loan agreement. Consent was vitiated by fundamental error on the subject of the contract. There was a total lack of information. Ms. Felicidad had an absolute lack of legal and financial terms. His sordomudez disabled him for understanding the contract because, dispensed entity measures to ensure understanding of the consequences that entailed the signing of the contract as a guarantor. Also, he said unfairness of the covenant of consolidation as the case of a general condition loan agreement, It was contrary to the rules of consumers and users. It should be declared void the covenant of consolidation because they were not drafted clearly, understandable and transparent in its consequences.

Primera Instancia

The 18 July 2018, the Court of First Instance No. 40 of Madrid gave judgment. entirely dismissed the lawsuit against Ms. Happiness and fully considered against D. Porfirio.

He condemned D. Porfirio to pay 13.034,08 euros in loan principal and interest arrears, plus legal interest of money increased by two points until full payment. He also condemned the payment of legal costs caused.

The judge accepted the claim of nullity of the clause relating to the entrenchment signed by Mrs. Felicidad. It determined that the consent was validly paid no, because there was no specific recruitment of the contract of guarantee. Only it consisted of Ms. Felicidad signature without further realization, explanation or invitation; lacked clarity and no information was provided on bail.

Provincial Court

LC ASSET, appeal filed. He alleged error in the assessment of evidence. He noted that Above the signatures if recorded that the signatories had read and received in the act of signing the general conditions of the contract. Such conditions jointly established that the sureties guaranteeing compliance with the obligations assumed in the contract, but they were implementing the benefits of discussion, order and division. He alleged that the defendant was fully aware of what I was signing or at the least having an average diligence. The contract was written, non verbal, so his disability did not affect the perfection of the same. The appellant claimed that deception was caused by the child itself (main headline) of Ms. Happiness, so that the creditor should not suffer the consequences of their wrongdoing.

Hearing spoke in respect. He alleged the jurisprudence of the Supreme Court on the vices of error consent may invalidate a contract. These were to be appreciated with extraordinary or exceptional caution and restrictiveness, in the interests of the faithful and accurate compliance with agreed (STS 30 June 1988 and 4 December 1990).

The absence of consent would determine the invalidity of the contract (art. 1261 CC). The error was a false understanding of reality, capable of directing the will to issuing a statement not actually dear.

The Court determined that it could not be concluded that there was an individual negotiation. Therefore, It was before a general condition of hiring, being applicable rules of Consumers and Users. So that, of agreement with the case of the ECJ, It has also demanded that the general conditions of contracts concluded with consumers meet the requirement of transparency (sentence 834/2009, of 22 December, 241/2013, of 9 May, 171/2017, 9 March and 367/2017, of 8 June). Thus, It was necessary that the clauses were drafted in clear and understandable and that the adhesive could have a real knowledge of them. So that,  the"informed consumer may provide criteria based on precise and understandable, its economic consequences

Following the STS nº608 / 17, of 15 December, this determined:

19.- ECJ case law, in implementation of the Directive on unfair terms, has declared the importance, to comply with the requirement of transparency in contracting with consumers through general conditions, It has pre-contractual information provided to them because it is at this stage that the decision to hire is adopted”.

This sentence refers to the STJUE of the case Andriciuc, whose section 48 he stated: “It is settled case law of the Court of fundamental importance for consumers to have, antes de la celebración de un contrato, de información sobre las condiciones contractuales y las consecuencias de dicha celebración. The consumer decides whether to be bound to terms drawn up in advance by the mainly based on that information ...

(…) we have stated on previous occasions the ineffectiveness of biased statements mentions that consist not of will but of knowledge or fixing, as certain of certain facts, which they are revealed as predisposed formulas professional,  Empty the actual content to be contradicted by the facts.”

In this case, it was not proven that the customer knew guarantee that assumed in hiring and solidarity that became indebted to the borrower. So good, It must be assumed that the entity will bear the burden of proof of having provided accurate information to your customer. “The intermediate financial institution or professionally involved in the acquisition by a customer of a particular financial product has the essential obligation to inform that customer, previously and in sufficient detail, of the characteristics of the financial product, so that it can make its decision with sufficient knowledge of the facts (…) without the Bank to proceed with purely formal compliance with the obligation to provide information by way of performing a brief description of what hired through a referral to another document, which it is said received, and in which are the general conditions of the contract, which however does not appear specifically endorsed by the Guarantor.”

The Court noted that, it was not established that the entity that special information to facilitate your customer. Especially when Mrs. Felicidad He suffered a consistent handicap in sordomudez, without the financial institution would empower any resource that will be provided effectively and understandable information. Also, It resulted proven, at the time of the signing of loan and deposit, no employee of the financial institution was present to facilitate timely information and answer questions.

The Court agreed estimating the declaration of invalidity of the clause relating to the consolidation because "we face retail customer, so we assume a lack of knowledge to understand some complex products, there, an asymmetry in the information regarding the company that hires.

It was to be noted that the surety held consumer consideration according to the Royal Decree 1/2007, by which the text is approved as consolidated General Law for the defense of consumers and users (LGDCU). That law considered consumers natural or legal persons who were involved in consumer relations for private purposes, hiring goods and services as final recipients, without incorporating them into production processes, marketing or provision to third parties.

The Court cited various judgments that have appreciated the unfairness of the waiver clause in strengthening the benefits of discussion, order and division and, whose pronouncements proved applicable to the case.

Judgment of the Audiencia Provincial de Guipúzcoa (section 2), of 30 September 2015:

In this judgment the applicant ran an invalidity action based on Article. 8.2 LCGC. He alleged an information deficit and confusion that led to the breach of the duties of transparency. As well as, the significant imbalance that was generated in its position as guarantor and went against the requirements of good faith.

The ruling cited the STS 9 May 2013 I meant with respect to control transparency "such control is intended that the adherent knows or can know simply both the economic burden it really means for him the contract ... as the legal burden of the same, namely, clear definition of their legal position ... Therefore, It is necessary that the information provided allows the consumer to decide what is a clause defining the main object of the contract, which affects or may affect the content of its obligation to pay ... so that to ensure that the consumer is able to get, antes de la conclusión del contrato, the necessary information to make their decision with full knowledge”.

He also alluded to the STS 8 September 2014 which stated that: “el control de transparencia, as nuclear projection of the actual principle of transparency in recruitment seriada ... is characterized as a legality in order to check ... that the contractual clause refers directly prearranged real comprehensibility, non-formal, Basic aspects of the contract ... so that the consumer and user, understand the legal consequences resulting charge ...”.

The sentence understood that, if there was lack of transparency in clause, It should be performed abusiveness control thereof. And, “They are those clauses abusive, contrary to the requirements of good faith, cause a significant imbalance in the rights and obligations under the contract, being clear that waiving the benefits of discussion and division involves substantial record so the legal position of the sear the benefit of the creditor”.

also notes the judgment, the fact that the Civil Code provides for the possibility of waiving the benefits of discussion and division, does not exclude the abusiveness to the extent that, by the complaint, They were restricting the rights granted to the same standard consumer.

Judgment of the Audiencia Provincial de Álava (section 1) of 1 September 2016, nº266 / 16:

In this judgment, the essential question was If the clause by which the bond was included waiving rights to the guarantor recognizes the Civil Code, She was negotiated. Namely, if such waiver is settled to the provisions of Directive 93/13 / EEC and the rules which transposed into Spanish law (The LCGC and LDGCU).

He recalled the criteria of the jurisprudence of the ECJ, stating that "the protection system established by the Directive is based on the idea that the consumer is in a weak position vis a professional, as regards both his bargaining power as the level of information ".

Forgoes the rights recognized by the Civil Code should be explanation. If the entity claimed that the resignation was negotiated, there must be proof of the respect. Well, should apply the art. 8.2 LCGC which states that "In particular they will be void general terms which are unfair when the contract has been concluded with a consumer ".

The ruling determined that "the guarantor waives all rights under the civil code becomes joint debtor of the principal, without perceiving, however, the considerations that have made the guaranteed debtor”.

He added that "the average consumer, reasonably well informed, He understands that the guarantor will have to respond but does the principal debtor. (…) But with the controversial clause, which it means the renunciation of all rights, not so happens... we find a fiador solidario, which he has renounced the benefit of discussion, división y orden, so that it is in real creditor deudor.El, in case of default of the principal obligation, You not even have to be addressed to the debtor, it can directly affect the assets of the guarantor ".

Clause supposed to place the sear in a similar situation to the principal debtor, situation that is unlikely to have really wanted.

ECJ case law, specifically the STJUE of 14 March 2014, C-415/11 specified that "to determine the abusiveness of the clause must be addressed to the nature of the goods or services covered by the contract, the circumstances of its conclusion, the rules applicable national law ... through a comparative analysis that reveals if left to the consumer in a less favorable legal situation ".

the consumer, with the resignation of their rights, it was, juridically, in a less favorable position than without that waiver.

Said the sentence "we have a sort of free bail, waiving all rights, as evidence not abide to the right balance of performance required by the standard. It is, thus, a waiver of the DA under 1º.14 LGDCU, which is considered abusive”.

Thus, abusiveness came to declare the clause according to Art bail. 9.2 and 10 the LCGC, so that, the contract can survive without bail, from what was declared invalid clause.

For all the above, the Court dismissed the appeal filed. Instance upheld the judgment. He condemned the appellant to pay the costs.


Banks are obliged to inform their customers of the contracts offered to them. Specifically, this duty is extended in entrenchment clauses because they pose a renuncia de derechos. If these clauses have not been informed and negotiated with customers, It may be declared invalid.

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