The TS recovers its old doctrine on the transparency of the floor clauses
The Supreme Court issues a new ruling on the floor clauses in which it tightens the requirements of material transparency of these clauses and guarantees the case-by-case study.
Floor clauses do not leave legal status. If the Supreme Court initially only considered the retroactivity of these clauses in mortgages signed in May 2013 and the CJEU extended it to the same signature of the mortgage contract, now the TS in a recent ruling last 9 March, modifies its criterion to verify that the concept of material transparency has been respected.
This new ruling STS 788/2017 of March 9, 2017 will not prevent, as was previously attempted when the government approved the Royal Decree of the extrajudicial process of land clauses (RD 1/2017 of January 20), a flood of claims In court for this type of clauses.
The TS ruling of May 9, 2013 (STC 1916/2013) decreed the nullity of the floor clauses appealing to a lack of transparency or clarity in the conditions offered by the bank in the mortgage contract to its customers. To do so, it used the “cessation action” mechanism, which condemns the contractor to remove from the general conditions of the contract any clause considered null and void and can not benefit from the effects of said clause.
However, at the same time as it considered the floor clauses to be null and void (making these mortgage contracts no longer valid), it set a time limit for claiming the overpayment for these mortgage contracts.
Therefore, although all these contracts were already null, only a few could be claimed (those signed after May 2013). This limit was what annulled the CJEU in its ruling of December 2016. The rest of clients rushed to flood the courts of lawsuits.
Secondly, the judgment of May 9, 2013, furthermore, increased the requirements for a floor clause to be considered transparent. These requirements were, according to the abrogated Ministerial Order of May 5, 1994, that the bank’s offer be binding, that the clause in question be separate and that there should be express warning of the notary.
But in this ruling, the procedure followed for declaring the floor clauses null was of general scope (to cover all contracts signed with floor clauses now nil) and this had the effect of eliminating the case-by-case study of each mortgage contract; That is, it prevented the individual action of nullity.
Now the Supreme Court corrects this fact and in the ruling of March 9, 2017 states that it will be necessary to study each specific case to determine if the clauses on a mortgage are null or not and whether both the bank and the notary did their transparency duty.
This is undoubtedly the most important aspect of this decision because it establishes the requirement of transparency of a clause floor in the joint action of the bank and the notary when they have been judged separately.
In this sense, apart from the case-by-case study, it recovers the option of declaring a floor clause null through the so-called instrument of cancellation due to a lack of consent (which is that there was an error, fraud, violence or intimidation in the signature of A contract) and resorting to the rebus sinc stantibus clause, whereby if the conditions under which a contract has been signed change drastically and unpredictably by the parties, there may be modifications in the stipulations agreed in the contract.
With this decision, the Supreme Court provides legal security by guaranteeing each judicial process by clause on its independent assessment and judgment, but above all, it avoids the extra-judicial “filter” that the government approved in January so as not to collapse the courts and that damages the weighting Case by case, essential in the fair exercise of the law.
Claudio Rodríguez Vera (@rvclaudio)
Lawyer at Del Canto Chambers