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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 1176. NEW! Supreme Court says every delay brings a cancellation, under Law 57/68
29 June 2014 @ 23:49

Recent Court Decission by Civil Room of the Supreme Court, dated 7th May 2014, has set a  judicial doctrine which states: 

-If you claim against a Guarantoor in a declarative proceeding, every delay is cancellatory.

- Provision 3 of Law 57/68 sets an automatic cancellation in favour of the buyer who has paid advanced amounts. There is no need of applying provision 1124 of the Civil Code-- where delay was analised in terms of seriousness to produce a cancellation. Every delay is cancellatory under Law 57/68.

Costa Luz Left

Briñas, La Rioja, North western Spain, at facebook.com

 

 

 

 



Like 1




7 Comments


ads said:
30 June 2014 @ 19:01

Thanks Maria.
Does this judicial doctrine relating to delays only apply to a declarative procedure or will this also apply for an executive procedure?
Also could you please explain the difference between a declarative procedure and an executive procedure and identify why you have to use an executive procedure as opposed to an declarative procedure?
Many thanks.


mariadecastro said:
30 June 2014 @ 21:57

It applies to executive procedures too.

An executive procedure is when a enforeceable title is available so no big discussion is needed in Courts.Just on some specific,
concrete points stablished by Law

A declarative procedure is used when that title is not available and therefore you need to create a court decission ( enforceable title) through longer and broader discussion.


ads said:
30 June 2014 @ 23:51

Thank you Maria. It's much appreciated.

According to this SC decision, if every delay is now deemed cancellatory against the guarantor, then where monies were paid in advance and protected by inalienable rights of Ley 57/68, is every delay now also deemed cancellatory against the developer where no force majeure applies?


mariadecastro said:
01 July 2014 @ 06:47

Our understanding, according to Supreme Court doctrine, is that implicitly it is, if cancellation rights are activated early after the delay-- including lack of guarantee as a breach-- and the claimant is a consumer.

But Supreme Court has also stated that lack of first occupation license is cancellatory just is parties have agreed so in the contract or there are reasons that can anticipate the fulfilment of the contract is difficult or impossible -- planning irregularities.

As a conclusion: there is still much specification work to be done by the Supreme Court


ads said:
08 August 2014 @ 10:44

I suspect many like Keith Rule, (who waited several years before submitting a lawsuit for cancellation and return of monies against the Bank), have been cautious, waiting for case law to be established (or in Keith's case diligently researching and conferring at length) in order to minimise the risks of failure against developers/Banks.
But now, if I have understood this correctly, this latest proviso within this SC ruling relating to delays appears to have ironically compromised rights to cancellation for those subjected to delays by an apparent time constraint proviso......
How can that be right, Maria, when no similar time constraints have been applied to courts and judicial rulings (from which case law has been established) during these lengthy interim periods?
I wonder if I have misunderstood this proviso Maria?
Does this now mean that justice will be denied those who have consciously been waiting for case law to be established before daring to proceed to cancellation and action against the Banks?


mariadecastro said:
08 August 2014 @ 12:42

Every case is different but yes, if a buyer has left years pass with no cancellation activity/ contact with developer/ advising from a lawyer... it might get his cancellation rights not being protected.


ads said:
20 August 2014 @ 17:28

Maria,
Hasn't the principal of legal certainty been contravened by the SC if they have placed a time constraint (proviso) on this ruling, which in effect denies the purchaser cancellation rights/inalienable rights according to Ley 57/68?
Also does this time constraint act as an example of unequal treatment in the eyes of the law, when purchasers have been denied similar time constraints to achieve timely justice/enforcements etc?
Don't these facts need to be brought to the attention of the SC and judiciary if it subsequently denies offplan purchasers the ability to take action against the Bank (as isn't cancellation of contract required for legal action to proceed against the Bank)?


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