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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 885. New Barcelona Case Law on Banks liability
16 January 2013 @ 12:05

Great decission by Barcelona Appeal Court in relation to Martinsa-Fadesa.

Roj: SAP B 12812/2012
Id Cendoj: 08019370162012100805

In Barcelona, on the 9th of November 2012

Following a Court Decission by the Supreme Court dated 25th of October 2011, establishes that lack of Bank Guarantee is a major breach of contract which procuces the most fatal consequences in the contract history: cancellation.

Protection of Law 57/68 is part of ther  fundamental rights of the European Union, acording to provision 38 of the Charert of Fundamental Rights: Consumers Protection: Policies of the European Union wil provide high level of protection to consumers. Provision 6 of the Treaty on European Union, so this right is fully effective to specific cases, according to provision 51 of the Spanish Constitutional text

Furthermore, says the Barcelona Court Decission, Law 57/68, was passed, intentionally to provide specific protection to Consumers.

Paragraph fourth of the said Court Decission is specially interesting in regards to Banks liabilities as literally says:

" Due to control and liabilitiy duties that Law 57/68 requires from Banks, out of provision 1 second of the said Law ( for the opening of the accounts and deposits, Banks or Saving Banks will request developers, under their liability, to provide guarantees described on paragraph above), Banks need to manage these funds as an expert trader and as if they were their own funds"

 The Barcelona Court Decission ends up by saying that negligency by the Bank ( by not requesting the Guarantees), needs to be classified as serious, as it breaches an imperative rule .Being the consequences, an onbligation for refund of deposit plus legal interests, as other interpretation would leave provision 1segundo with no content. ( no real effect) 

Perfect vision of Law 57/68, in our legal opinion.

Cheers,

María

 

Barcelona

"Barcelona", North.east of Spain, by Moyan_Brenn_be_back_on_Jan_20th, at flickr.com



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3 Comments


Anne said:
16 January 2013 @ 16:11

Thank you. This is good news Maria.
For new case law such as this to be considered by the Spanish judiciary do you have to include specific reference into the original lawsuit?
I'm wondering how can any significant new case law such as this be incorporated into existing BG claims?
Is there some mechanism within the Spanish judicial system that encourages the judiciary to remain aware of any new and significant rulings such as this when making their judgements, or does it depend solely on the case law quoted within the lawsuit?
Given the delays that are occurring in the Spanish judicial system I wonder how consumer rights can be covered by any new case law such as this, when the case may well have already been submitted into the courts?


Keith - Finca Parcs Action Group said:
17 January 2013 @ 12:56

Case Law such as this example from Barcelona together with other Case Law confirming Banks libilities according to LEY 57/1968 will of course be included or referred to in any new Lawsuits that have not yet be submitted.

Existing Lawsuits that have already been submitted and are in procedure will just include Case Law that was available prior to submission. You cannot normally add this type of information retrospectively, however it may be possible to refer to new Case Law examples at the First Instance Hearing and/or in any Appeal procedure.

Judges will of course have access to the databases and will consider all available relevant Case Law available at the time they make their decision.

I will give you an example with Finca Parcs. As you know the we won in First Instance in June 2012. The Bank appealed. In our oppostion to the appeal we made reference to new Case Law that was not available at the time we submitted our original Lawsuit in Feb 2011. Appeal sentence will be issued in March 2013. A few months ago after submitting our opposition to the Banks appeal there was some significant Case Law relating to our development. We sent a copy to the Appeal Court. They refused to accept our submission. They said that any such Case Law is available in the relevant databases to which they have access.

Kind regards

Keith


Anne said:
17 January 2013 @ 22:48

Thank you Keith,
If an appeal judge then chooses to ignore any new case law available (within the database to which they have access), can this matter be brought to the attention of the Supreme Court?


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