El blog de Maria

Your daily Spanish Law reporter. Have it with a cafe con leche.
www.costaluzlawyers.es

Legal tip 236. Malaga Appeal Court keeps favouring Consumers
26 February 2010 @ 10:35

Malaga Appeal Court has again passed a Court decission favouring the application of the Pro-consumers approach within the off-plan business. This keeps providing fresh air against so much abuse and disaster.

The decission we appealed was passed by a First Instance Court in Marbella which, even both parties having acknowledged the delay of 11 months and lack of First Occupation License, considered there was no breach of contract and the contract could not be cancelled.

We appealed on the basis of lack of correct application of Law 57/68 which simply and clearly exposes ( as you all know now) that delay of the completion of the works opens for the buyer the option between cancelling the contract or granting an extension period with the corresponding compensation as price reduction.

The other set of doctrine importantly applied by this Court decission is that of our Supreme Court by which cancellations operate if the breach frustrates the aim of the contract, the legitimate aspirations of the contract party. Just a clear and objective breach is needed, without the need, as per the old doctrine, of a persistent resistence to the fulfilment of the contract or a deliberate will of breaching but just a simply a voluntary and unjustified conduct for breaching the contrat in the agreed terms.

Congratulations to Malaga and our litigation department!

Corralejo beach Fuerteventura by Lorenzo at Flickr.com

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2 Comments

Sandra said:
26 February 2010 @ 22:46

Congratulations on your team's dedication and the professional skill and persistance of Costaluz's litigation department.
Congratulations too to the Malaga courts for having the good sense to overturn such a blatently wrong judgement, although it beggars belief that cases which could be settled quickly and fairly at a local level are continuing to clog up the appeal courts.
The laws are in place to enable the local judges to make their decisions so why are these 'wrong' decisions continuing?
Do some of these local judges not adhere to the Country's law preferring to make up their own laws as they go along?
If so, then why do the appeal judges not comment on these judgments which waste so much time and money ?
Who judges the judges?

Maria said:
09 March 2010 @ 09:40

Sandra: Always there, always sweet.

Apologies for this so-delayed response. Please have my comments below :

Your question: The laws are in place to enable the local judges to make their decisions so why are these 'wrong' decisions continuing?.

My comment: Too much locality I would say.

Your question: Do some of these local judges not adhere to the Country's law preferring to make up their own laws as they go along?

My comment: They lose as it is not good to have Court decission you have passed being overturned by a higher Court in a matter about which there is Case Law to follow.

Your question: If so, then why do the appeal judges not comment on these judgments which waste so much time and money ?

My answer: They comment on them in the Appeal Court decissions.

Your question:Who judges the judges?

My answer: Higher Courts