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El blog de Maria

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

Legal tip 1099. Supreme Court and 3 months delay
30 January 2014 @ 14:32

Tribunal Supremo Sala 1ª, S 11-12-2013, remarks that as per the contract, as parties mutually agree, delay as a cause for contract cancellation,the 3 months delay is enough for the contract to be cancelled and refund obligation to arise from developer and Insurer. It is a good Court Decission for those who had a cancellation clause among their contract clauses but, I wonder.....

- Those who did not and meet the profile of off-plan buyers of Law 57/68, due to the imperatice character of this Law, should not have same rights? I think they should.

- What is the liability of the Conveyancing Lawyer which did not pay attention to this imnportant element: deadlines, delay, cancellation clause... according to Law 57/68. I think this is a gross negligence

I think, and have always thought even more: that provision 3 of Law 57/68 because of its imperative/inalienable character works as legal cancellation clause whatever it is stated on the contract or not.

I am asking Tomas ( Real Estate Law Professor I had in Law School) what he thinks about this.... I will let you know

Cheers

Maria

Costa Luz Left

Can Espanya-Serra, Palma de Mallorca, Baleares Islands, North eastern Spain, by SantiMB, at flickr.com

 

 

 

 

 



Like 1




7 Comments


ads said:
31 January 2014 @ 14:13

Thank you Maria for this informative posting.

Does this now imply that for all cases where the specific completion date/deadline (as defined in the purchase contract) was breached by more than 3 months and no licences were in place at that point, and where there was no cancellation clause written into the purchase contract, that any claim for return of monies against the developer/insurer will ultimately fail as things currently stand?

Does this mean that according to the Supreme Court the Ley law and inalienable rights are to be ignored, and only when a specific cancellation clause is written into the contract is the consumer protected under the above criteria?
Why would you need to repeat the protection in the form of a cancellation clause in the purchase contract, when you should already be protected via the existing Ley Law?

Perhaps I have misunderstood?
I would be very grateful for clarification.




mariadecastro said:
31 January 2014 @ 14:31

Dear Ads:

I fully agree with you. The existence of Law 57/68 makes innecesary any clause on cancellation delay and refund, as they are obligations established not by the will of parties but by the Law itself. As a matter of public order, with an imperative character ( nothing different can be agreed by parties) and with inalienable strength

Maria


ads said:
01 February 2014 @ 07:45

The Supreme Court reference to a clause on cancellation delay and refund appears to undermine Ley 57/68 and would result in further litigation for the innocent consumer to have to suffer even greater delays and expense associated with the need to take action against the conveyancing lawyer for non inclusion of this clause, when in reality consumer rights should already be protected under article 3 of Ley 57/68 with rights of cancellation and refund. (see http://www.eyeonspain.com/blogs/costaluz/11899/Legal-tip-1078-Law-5768-explained.aspx#comments).

Does this SC ruling now define the boundary of acceptable delay for cancellation and refund associated with offplan contract as 3 months beyond the contract deadline, Maria? How does this impact article 3 of Ley 57/68?

More importantly how does this now affect those who are already in the legal system awaiting justice and return of their monies?
Will their claims against developer/insurers inevitably fail if they do not have this clause in their contract?
Will they be subjected to costs associated with this failure and then have to resubmit claims against the conveyancing law firms (with all additional associated costs)?

This is crazy Maria and does not respect existing INALIENABLE consumer rights!

This ruling, alongside a recent ruling associated with early recognition of lack of bank guarantee, when the consumer cannot be expected to have intellectual knowledge of same (or has been denied this priviledge by failures to adhere to Ley 57/68) only adds to the injustice that innocent consumers are being subjected to in Spain.

This SC challenge to inalienable rights also appears to fly in the face of the prinicple of "legal certainty", a principle that is recognised as one of the general principles of European law, does it not? As a general principle in European Union law, it means that the law must be certain, in that it is clear and precise, and its legal implications foreseeable, especially when applied to financial obligations.

Bank Guarantee abuse in Spain is now placing an intolerable financial burden on innocent consumers and needs to be recognised within the justice scoreboard in Spain.
At present it remains hidden from those who are supposed to be effectively monitoring the system of justice.

Will you also please bring this challenge to the principle of legal certainty and early recognition of lack of BG to the attention of your professor, Maria, for his clarification?

When do you expect to gain a response from your professor?

Thank you, as ever, for all your continuing endeavours in this regard.


mariadecastro said:
03 February 2014 @ 13:39

Still clarifying with him


mariadecastro said:
03 February 2014 @ 13:39

My opinion in those two cases is same like yours Anne. Supreme Court is, so far, making light interpretations of Law 57/68 in those two fields


ads said:
10 February 2014 @ 16:39

Maria,
One more question... is a BG (and all subsequent amendments to a BG) supposed to be annexed to the purchase contract according to Ley 57/68? Does this requirement form any part of purchaser's inalienable rights? Likewise for the requirement to stipulate the Bank and secure account where deposited monies were to be transferred?


mariadecastro said:
11 February 2014 @ 12:14

Ads:
Yes, both Bank Guarantees and special account are part of the inalienable guarantees ( rights) of consumers according to Law 57/68.

Supreme Court has stated reiteratedly in the last months the important character of these both.

Kindest,

Maria


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