THE PLENARY OF THE FIRST CHAMBER OF THE SUPREME COURT HAS RESOLVED THE PETITION FOR CLARIFICATION OF ITS JUDGMENT OF 9 MAY 2013 ABOUT THE SO-CALLED “GROUND CLAUSES”
1. In the judgment it declared null the clauses judged because of the concurrence of the following circumstances:
a) * The creation of the appearance of a loan contract to a variable interest in which the oscillations of the reference rate toward the low, will affect a decrease in the price of money.
b) *The lack of sufficient information that it is a defining element of the main object of the contract.
c) *The creation of the appearance that the “ground” has as an indivisible compensation the fixing of a “roof”
d) * Its location among an overwhelming amount of data among which are hidden and which blur the attention of consumers in the case of those used by BBVA.
*Lack of simulations of different scenarios related to reasonably foreseeable behavior of the interest rate at the time of contracting, in pre-contractual phase.
f) *Absence of a previous, clear and understandable warning about the comparative cost with other products of the same entity.
- Credit institutions wanted that it was declared that, for the declaration of the nullity of the ground clauses, it was necessary that all these circumstances concurred
- The Supreme Court states that it is not necessary that all these circumstances concur simultaneously and that the perfect knowledge of the clause, its importance and impact on the performance of the contract, in order to allow consumers to take their economic decision after having been dutifully reported, is a result that can not be substituted for the compliance of formalities lacking of efficacy in this sense -reading by the Notary, etc. -.
-SC also states that ground clauses may be null although the consumer had been benefited for a time by the fall of the reference rate.
-Supreme Court also states that rest of the contract subsist and that this decission has NO RETROACTIVE effect.
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El Gastor, Cádiz, South of Spain