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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 387. San Javier Court going pro-consumer and against a clause of a Polaris contract
Thursday, November 4, 2010 @ 1:55 PM

A recent Court decission won by our Law Firm in San Javier, declares abusive the clause of Polaris contracta by which the developer tries to retain the whole lot of paid amounts after the cancellation of the contract by the said developer.

The decission is based on applying Royal Decree 1/2007 which says that those clauses which have not been negotiated on an individual basis need to be clear, simple and legible, being essential the presence of good faith and fair balance between rights and obligations of the parties

Provision 82.4 of the said Royal Decree explicity describes as abusive all those clauses which link the contract to the company´s will, limit rights of consumers and users, lack reciprocity, restrict guarantees in an unproportionated way, wrongfully impose to consumers the burden of proof ,or are in any way unporportionated to the execution of the contract or contravene rules about jurisdiction or applicable Law.

 

Good again for litigators!



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2 Comments


paulmcpake said:
Wednesday, November 17, 2010 @ 11:12 AM

hi Maria
i have spoken to you before i have taken polaris world to court in san javier on the 4th october and i await the decision by the judge i have gone down the breach of contract and the 18 month clause in the contract which is also abusive
i will let you know what happens
the judge was getting back to me within 4 weeks guess what i am still waiting ( after all its spain we are talking about )
hope i get word soon
all the best
Paul


Keith said:
Sunday, November 28, 2010 @ 11:22 PM

Good faith and Fair Balance - cannot really be used to describe the majority of off-plan developers and promotors!! :-)

I would imagine that many contracts for off-plan properties over the past few years have 'limited the rights of consumers'.

Also with regards to some Finca Parcs purchasers who did receive Bank Guarantees - now they are attempting to execute them with CAM Bank and the bank are not only demanding that the purchaser proves that the LFO has not been issued for their particular plot, but for the whole of the development..... Surely this is a prime example of 'wrongfully imposing on consumers the burden of proof'....

Kind regards

Keith


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