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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 266. Murcia Appeal Courts favouring Consumers
28 April 2010 @ 11:12

 

Murcia Appeal Court, Court decisión dated 24/09/2009, No. 202/2009, rec. 207/2009. Presenter Judge: Larrosa Amante , Miguel Angel


1) "The contract is ambiguous on behalf of the appellant who was who wrote it, so this ambiguity can not harm the consumer"

2) "
It is known the Case Law which requires, for the granting of cancellation that the breach of one party  frustrates the purpose of the contract for the buyer and also makes it necessary that, in order to bring an action for cancellation, that the applicant has complied with all obligations under the contract. "( Our commentary:  This modern Case Law  stream, does not put the criterium for the determination of the cancellatory breach on a rebellious and hindering behavior of the buyer, as it  is for the old doctrines but, according to the principles of Consumer Law set the clue on the frustration of the purpose of the contract for the buyer and the fact that it has fulfilled its obligations)

3)
"The failure is so obvious that it is not understood very well that the appellant insist on the lack of breach, unless it is considered that the fixing of the date of delivery is a unilateral right of the developer  that buyers have to submit necessarily and without any kind of question, consideration that  would not be covered by any legal regulation and which would be against provision 1256 of the Civil Code (see provision on foot page)
. The delivery date is an essential element of the purchase agreement and as such can not be left to the arbitrium of one of the parties. The fact that there were delays associated with building permit problems is no excuse in any way that can justify the delay, because such administrative problems are attributable only to the seller without intervention by the buyers. As a conclusion, there are grounds for cancellation, due to the breach of the completion deadline and the need of buyers for such housing earlier on time, not being, on a different sort of things, a  simple delay of a few days or weeks, but a delay extended in time and that defeats the purpose of the contract."

Cheers to Mr. Larrosa Amante!



[i] Provision 1256 of Spanish Civil Code stats: " Validity and compliance of contracts can no be left to the decission of one of the contract parties"

"Playa de los Alemanes", Atlanterra, Zahara de los Atunes, (Cadiz); by Luis López-Cortijo



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3 Comments


confused said:
28 April 2010 @ 11:54

maria , i am a little confused , are you saying that the judge ruled in favour of the developer at appeal ? if so what would be the next course of action ?


Maria said:
07 May 2010 @ 05:32

The Judge ruled in favour of Consumers


Keith - FINCA PARCS ACTION GROUP said:
09 May 2010 @ 20:39

Developers will use any excuse in an attempt to justify completion delays. It is good that the judge in this instance favoured the Consumers and sent a clear message to developers to say they cannot use problems with the issuing of building licences as a legitimate reason for delay in completion.


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