LEGAL
First. - The first issue raised in this appeal is related to the lack objective jurisdiction. It is true, as opposed the respondent, it is a new claim or exception not raised in the instance. However both lack of jurisdiction as the objective jurisdiction (art. 38 and 48 of the LEC), must be assessed on its own initiative as soon as noticed the lack with hearing the parties and the public prosecutor, being unavailable standards , pointing to the art. 48.1 that "The lack of competition objective will be appreciated by trade, as soon as you notice by the court hearing the case." In that plea must be dismissed opposition.
Appellant Case lack of competition objective, in fact attributed to the defendants responsibility as general proxies or de facto directors of the Company, fundadaza responsibility in art. 133.2 of the Companies Act (Act 26/2003 of 17 July), applicable to limited liability companies by application of art. 69.1 of LSRL. Thus corresponding to the Commercial Courts jurisdiction over the liability of directors.
In the lawsuit the plaintiff interest liability is declared solidarity of the defendants, ordering them to pay compensation amounting to € 1,189,661 '09, founding it in the condition of volunteer attorneys and defendants infringement the duty of care that is due them (prudence, professional competency, duty of disclosure etc.), considering applicable arts. CoC 281-297. and arts. CC 1709 et seq. The claim can not merit favorable reception. As the service was entrusted them understand the design of the whole investment project since the establishment of the same company through which investment would be channeled, as the search for land on which to develop it, locating builders promoters and all legal, tax and professional requiring the project. No defendants acting as de facto directors of the commercial applicant but as agents, managers mandated by those whose mission was precisely to develop the activities of the applicant, but the fact that serving as a representative with broad powers, not Manager makes it.
It is true that the Court has sometimes likened to the attorneys with the Directors of fact and as such he has claimed responsibility, provided that certain circumstances, as part of the Board of Directors or effectively perform such functions or when used with mood fraudulent seizure.
So the STS of February 4, 2009 provides that "the art. 133 LSA refers to as holders of the responsibility that it is set to "Administrators" (or "members of the administrative body": Art. 133.3 LSA ). This quality is held by those named as such by the AGM (section 123 LSA ), and, according to case managers made (specifically from the Law 26/2003 ), that is, who, without holding a formal appointment of administrator and other applicable requirements, have the function.
c) The simple seizure can not determine the audience interested in the capacity as a director, but there is no doubt that anyone who is on the board of directors meets as administrator for the consequences of negligent conduct detrimental to society and the fact it particularly empowered to perform certain functions does not deprive him of the status manager or responsibility.
Moreover, the judgment considers it proven that the defendant acted with full powers as a de facto manager and jurisprudence, as just stated, assimilates this figure to the Administrator in the formal sense, anticipating legislative reform in this area today into force. According to the case is admissible equalization factor of commercial agent or administrator made in cases where the evidence proves that he acted in that capacity ( SSTS May 26, 1998 , March 22, 2004, RC n. º 1556/1998 , March 14, 2007, RC n. º 262/2000 , 7 May 2007, RC n. º 2225/2000 , February 8, 2008, RC n. º 5168/2000 , March 14, 2008, RC n. º 74/2008 ).
d) The appellant, as a subsidiary argument, claims that it has been proved negligent conduct as administrator.From the decision to examine the extraordinary remedy procedural infringements follows that this argument can not be accepted, as part of a course that is contrary to the standard of proof that makes the judgment . "
STS also the February 2, 2008, says: " The art. 133 LSA refers to as holders of the responsibility that it is set to "Administrators" (or "members of the administrative body": Art. 133.3 LSA ) . This quality only hold those named as such by the AGM (section 123 LSA ), and, according to case managers made (specifically from the Law 26/2003 ), that is, who, without holding formally appointed administrator and other applicable requirements, have the function as if they are entitled regardless of such formalities.
The administrator condition actually encompasses not, in principle, to the attorneys ( SSTS of June 7, 1999 andJuly 30, 2001 ), always regularly acting appointments of the directors or managers of these, since the characteristic of administrator is not in fact the material realization of certain functions, but the performance in the capacity as a director without observing the formalities essential that the law or the statutes require to acquire that status.
It is, however, the equation of proxy or commercial factor administrator made ( STS of May 26, 1998 , May 7, 2007 rec. 2225/2000 ) in cases where the evidence proving such a condition in his performance. This occurs when one realizes paradigmatically fraudulent use of the power of attorney in favor of one who really takes control and management of the company with the intention of deriving exercising responsible actions towards people insolvent, formally designated as administrators to delegate power, but can also occur in other cases of a similar nature, as when compared to the one presented formally as administrator without an agent effective functions appears to be true, real and effective social administrator ( STS of March 23, 2006, appeal 2643/1999). '
As stated by the STS of March 14, 2007 " alleged lack of standing, not to compete in the same condition administrator but proxy. The exception must be upheld, for the following reasons:
a) The proxy does not have the character of an administrator, which appears linked to the responsibility required by the Companies Act, for the art. 133 LSA refers to as holders of the responsibility that it is set to "Administrators" (or "members of the administrative body": Art. 133.3 LSA ), a quality that only hold those named as such by the General Meeting (art. 123 LSA ), and, according to case managers to fact (specifically from the Law 26/2003 ), that is, those who, without holding a formal appointment of administrator and other applicable requirements, have the function as if were entitled regardless of such formalities, but not those who regularly act mandated by administrators or managers of these, because the property manager is not in fact the material realization of certain functions, but the performance in the failure condition administrator minimum formalities of the law or the statutes require to acquire that status. The administrator of fact is the product of the absence or defect of any of them.
The question arises, as does the STS of 26 May 1998 , equating the commercial agent or factor made administrator. However, this doctrine should be reserved for cases in which the evidence proving such a condition in the proxy, as can happen when one considers fraudulent use of the power of attorney in favor of one who really takes control and management of the company with derive profit exercising responsible actions towards people insolvent, formally designated as administrators to delegate power. If not met a situation of identical or similar, the parties responsible (as stated by the SSTS and June 7, 1999 and July 30, 2001 ) are the administrators, not the agents, that are by large the powers conferred on them because if they act as true leaders, following the instructions of the legally appointed administrators, can not be characterized as de facto directors . "
Insofar as we have said, do not exercise an action for administrators art. 133 of the Companies Law, the defense of lack of jurisdiction objective is not met. It brings an action for damages as a trustee or agent in charge of a particular service "real estate investment project." Admit the appellant's argument would extend the scope of liability of directors to any proxy.
Second. - The second ground of appeal that is reported by the respondents, is the extra petita incongruity resolution incurred in that instance, to understand them, the demand is claimed responsibility as guardian, in the field empowerment of civil or commercial mandate, while the court judgment sentencing in accordance with art. 1101 of the CC, professional liability under a lease of services including legal advice. Alleging violation of art. 218 of the LEC and infringement of the principle of contradiction.
As STS collects October 19, 1999 "... It is settled case law that proclaims to decree if a judgment is inconsistent or not, have regard to whether to grant the request over (ultra petita) or decides on certain issues matter how pleaded by the parties (extra petita) and if left unchallenged and unresolved some of the claims held by the parties (infra petita) provided the legal silence can not reasonably be interpreted as tacit refusal ( STS March 10, 1998 and November 24, 1998 ) ... " Meanwhile the ST Constitutional July 10, 2000 notes the inconsistency regarding "extra petita" that "... The incongruity or extra petita excess is a procedural defect that occurs when the court order granting something or ruling on a claim that was not timely deducted by the litigants. involves an imbalance or mismatch between the decision or part of the judgment and the terms on which the parties made their claims in the process. In this aspect, is always a violation of the principle of injection device and parts, which prevents the judge to rule in civil proceedings on petitions that were not put forward by the parties, who are legally attributed domini litis true quality and shape the object process, defined for this purpose by the subjects of the-parts-, by reason or cause of action-petendi cause. This does not imply that the judge has to be bound rigidly to the specific wording of motions articulated by the parties their respective writings forensic or legal reasoning or arguments put forward in support. Firstly, the principle "iura novit curia" allows the judge to be of relevance to the case application, although not HAVE litigants invoked, on the other hand, the single judge is bound by the essence and substance of the request and discussed in the lawsuit, not the specific wording of the claims instituted, as has been formally by the litigants, so that there will be no additional incongruity petitum when Court judge or decide or decide on one of them that, even if not formally or explicitly or implicitly person was brought out essential or necessary consequence of articulated motions or main issue debated in the process .. . ".
Meanwhile the STS 23.10.09 states that "This Court has held, inter alia, Case February 2, 1998 , that if they report the inconsistency of the judgment, must be linked to this failure with written requests by guiding the process to check if given more, less or something other than what order, if it falls on a different debate promoted by the litigants, or contains contradictory points, or is at odds with the fundamentals constitutive law of "ratio", not with those containing mere "obiter dicta" . "
Likewise, 30.10.2010 STS provides: " FOURTH. - No alteration of the dispute.) As stated in the STS 25.6.2009, RC n. º 978/2004 , the principle of justice entreaty determines who should the initiative of the initiation of the process and gives the parties as a whole.'s rule part contribution, however, precisely who has the task of presenting the facts to the trial, to delimit the subject matter hereof, and to seek accreditation through the presentation of evidence. not contradict the principles of justice and contribution entreaty part when the Court has decided the matter, whose opening has been a part initiative within the factual and legal context in which it was raised with respect to the cause petendi [cause of action], to the substance of the subject and on the evidence adduced by the parties ( SSTS of March 30, 2009, RC n. º 1436/2004 , and 8 April 2002 RC n. º 3400/1996 ). B) The duty of consistency is summarized in the necessary correlation must exist between the fault and the claims of the parties, taking into account the petitum [request] and cause petendi [cause to ask], ie the set of facts essential to the achievement of the intended legal effect by the plaintiff, as advanced in the application appear ( SSTS of November 7, 2007, RC n. º 5781/2000and 14 May 2008, RC n. º 948/2001 ), and not infringed when used in addition to or auxiliary arguments on issues not raised by the parties ( SSTS of July 24, 2007, RC n. º 3425/2000 , December 13, 2007, RC n. º 4578/2000 , May 6, 2008, RC n. º 1589/2001 , 13 February 2007, RC n. º 1154/2000 , STS 23 July 2007, RC n. º 3624/2000 , 18 June 2008, RC n. º 599/2001 ). C) The maximum iura novit curia [court knows the law] permits the court to base its decision on legal precepts than those invoked not substantially altered when the facts underlying the claim ( SSTS of March 6, 2007, RC n. º 717/2000 , 18 June 2007, RC n. º 4408/2000 , November 8, 2007, RC n . º 4341/2000 ,December 5, 2007, RC n. º 2748/2000 , 22 January 2008, RC n. º 5501/2000 ) and can be understood only violated the principle iuxta allegata et probata [as alleged and tested] and exceeded iura novit curia [court knows the law] when estimating demand supported by fundamentals - provided they are determinants of failure-variety of alleged ( STS 29.5.2006, RC n. º 3678 / 1999 ). D) In the contested judgment does not violate the principle of contribution part and have not been altered the terms of fact and law on which the dispute was raised "
Moreover, the STS of July 8, 2009, stated that " The agreement imposed by the duty of consistency between the claims of the parties and the operative part of the judgment must be understood not so rigid but flexible enough so that the adequacy of the judgment, in terms of reasonableness, those claims ( SSTS of November 4, 1994 , October 28, 1994 , July 18, 2005 , April 19, 2006, RC n. º 2974 / 1999 , 17 November 2006, RC n. º 3510/1997 , December 3, 2007, RC n. º 4578/2000 ) . "
As stated by the SAP in Madrid 03.01.06 " the curia novit iura requires not only alter the substantive claims made by the parties, but not the total submission of the fault to the latter, following the principle da mihi "factum" ius tibi dabo ego, and this change does not occur in this case, since the Board keeps full instance sentencing accommodate the factual aspects raised in the litigation in question ( S. of April 27, 1989 ). Indeed voices facts and claims, facts and requests, demands and claims do not give an accurate picture of the objective element of the action is exercised, that is, of the "res in iudicio deduced" or object of the process and its precise delineation purposes congruence of "mutatio libelli" res judicata, etc. If by "requests" or "claims" the Supreme Court meant "what is required", ie the "petitum" it is clear that in this group of resolutions asking the cause of the form just the facts. If by "claims" means the specific proper legal protection is sought, that is, the action stated in the process, the term "facts and claims" involves a tautology. Apart from that, in these statements nor clarifies the scope of Brocardo "iura novit curia", because after using this expression, adds that should keep "proper follow the legal component of the action", although "it is allowed to establish their critical judgment sentencing the manner he deems most fitting "( S. of April 9, 1985 ), "not even applying rules invoked by litigants, according to the maximum freedom enshrined in the legal reasons (' novit iura curia '), provided that the change of basis does not mean that the claim has been altered, or what is the same as host to an action not invoked, amend the cause of action or replaced by other issues discussed "( SS. than December 7, 1982 , January 28, 1983 , and December 26, 1989 ) "that can be derived without the incongruity of the legal basis of the judgment, much less the discrepancy between these and the estimated applicable by the litigants, as the power of the courts to investigate and apply the rule to consider the case, it is limited, based on the inconsistency, that of not being able to host an action is not invoked, alter the cause to order or replace other issues discussed by settled doctrine of this Court "(S. of 9 December 1981 .) and other relevant resolutions, after arguing the expressions above, the Supreme Court, citing the "principle of freedom in the legal grounds "that allowed the court, adding:" if the rule change means no change in the claim or the factual basis of the process "( S. of November 26, 1982 ), it does not produce the vice of inconsistency that the ruling "separate from the issues in law that litigants have submitted to them" and that consistency "must be understood in relation to demand and claims made in the lawsuit ... and legal appointments alleged by the parties "( S. of March 9, 1981 ). Similarly, for the S. of July 24, 1990 : "the curia novit iura authorizes the court in the course of applying legal dispute legal standards it deems appropriate and to modify the legal basis underpinning the claims of the parties, with the simple requirement of agreeing the decision with the issues of fact and law that litigants undergo knowledge without altering the tired of asking wielded in the process ... so that ... the Courts ... have authority to investigate and choose the legal standard applicable to the case at issue but had not cited by the parties, taking into account that this subordinate only to private actions, but not the standard designation by the parties, or its claim erroneous, and therefore no impact to the effectiveness of the claim or defense if the act fits into the standard set that the Judge deems proper, unless an obvious mistake, since the action is individualized by the fact, and therefore only possible inconsistency by altering the facts and cause petendi and not change legally " . "
Based on the case-law set such ground of appeal can not deserve favorable reception. Do not forget that in this case required the defendants liable for damages resulting from a negligent performance or lack of diligence, concurring identity made the subject of the complaint and the answer in that as places of highlight the very judgmental instance, in response to the complaint, the defendants come to recognize the facts stated in the complaint, although with some qualifications, and consequently contentious debate and development testing is practiced on the same facts and circumstances, Hence it can not violate the principle of contradiction.
Such facts may be subsumed, in contract (art. 1101 CC), whether by way of injunction or seizure contract either by way of lease services. In fact there are important doctrinal questions, since it is related figures, and in fact, the Civil Code defines the term as a contract by which a person undertakes to provide a service to another or do something for or commissioned other (art. 1709 CC).
Third. - Opposes thirdly the exception of lack of standing causam ad on the basis that the funds for the purchase, which are claimed in these proceedings were not delivered by the plaintiff to the defendants entity, but for others. They consider that the appellants are claiming damage to third parties, without dispute that the plaintiff is entitled to act on their behalf.
Before that reason opposed the appeal in the first place this is not opposing new exception in the instance.However, as we have said above, to the extent that the exceptions of lack of standing and passive job are appreciable, because affecting procedural public policy, there is no reason that you can get to know of them.
The art. LEC 10 states, under the heading of "procedural legitimate party status" which "will be considered legitimate parties who appear in court and act as owners of the legal relationship at issue or object. Exceptions are cases in which the law confers legitimacy to someone other than the owner. "
As noted by the STS of 16 May 2000 " legitimacy lies not in the mere assertion of a right but also depends on the legal consistency between affirming ownership and the legal consequences that are intended. In sum, the standing in the civil process manifests itself as a problem of legal consistency, as required by the fit between the stated legal ownership and legal order that is intended, which means that the issue of standing must involve a " questio juris "and not a" questio facti "that even affects the substantive legal arguments, can be determined prior to the resolution of the same, as only undertakes to establish whether, in fact, the position is consistent legal opinion cited regarding requests that are deducted. can therefore be legitimized and lack the right to controvert. Nevertheless, given the linkage of standing with the theme and the utilities management concept involves accurately not surprising that sometimes confuse standing ("questio juris") with the existence of the dispute (which requires verification of the facts which make it up) " ( in appeal No. 03/31/97 STS. 1275-1293 EDJ1997/1487 ). And there, above all, the lack of standing "ad causam" officially deemed significant by the courts, including this Court to hear the appeal (SSTS EDJ1993/9336 10/20/93, 1-2 - EDJ1994/745 94, 11/13/95 EDJ1995/6220, EDJ1995/7310 12/30/95 and 24/01/98EDJ1998/65 among others), bringing reproach of inconsistency to the judgment and all the arguments of the two reasons discussed here fall dead by his base . "
And, as the STS of September 18, 2008 "" As affirmed the judgment of this Court on February 28, 2002 , with the appointment of March 31, 1997 and December 28, 2001 , the legitimization "ad causam" consists of a position or condition objective in connection with litigation related material object that determines an ability to act on the same part, it is a quality of the person to be in the position to legally based recognition is the claim that exercise and requires " a match between the legal ownership asserted (active or passive) and sought legal order ", strictly speaking being a preliminary to the merits, although closely linked with him, that by its nature can and should be examined automatically by court ( Case October 10, 2002 , July 20, 2004 and June 27, 2007 , among others) and that individual rights do not exist in the abstract but as belonging to a particular subject and that subject is precisely holder alone can demand their effectiveness by appropriate exercise of judicial action, it is irrelevant that such action of entitlement can be claimed by who in reality, their condition or indirect relation to this right, according to his own statements in the lawsuit, lacks the necessary relationship justifying the year of action, whereas the judicial pronouncement to its lack would in a vacuum and without justification or benefit to its true owner (who really enjoys the legitimacy causal or "ad causam") which justifies and imposes, as stated above, consideration of office of the concurrence of the budget process . "
Similarly the Alicante SAP 5.2.08, noting that " as noted by the Supreme Court judgment of 28 February 2002 (application no. 3109/96 ), legitimation causam ad consists of a position or objective condition in connection with litigation relating material object that determines an ability to act on the same part, it is a quality of the person to be in the position to legally based recognition of the claim that exercise is "and requires" a legal title match between asserted (active or passive) and sought legal order ", according to the SSTS 03/31/97 and 12/01/28 cited therein. "
It therefore needs to meet the basic legal relationship to determine who hired the defendants. Not forgetting the other hand, the commercial entities are legally separate and distinct from the members who compose it. For what must be considered whether the plaintiff was the commercial that had sex and contracted with the defendants or if instead it were the individual investors, as it tries to determine whether it satisfies the so-called "lack of ownership of the right of action ".
And the evidence taken in the proceedings that although investors entered the amounts in an account of the defendants, the recipient of such income was none other than the commercial applicant, to the extent that it was agreed that the investment project property would be developed through the establishment of a merchant would receive funds or investments that commercial is none other than the applicant. Without that you can now, as the appellants seek to understand who committed a material error to answer the complaint, when indicated that "certain funds are transferred by the plaintiff to the account of my client" because as we have said, was ultimately the commercial applicant and recipient of such income is not the defendants, who were but mere managers. Being the commercial applicant legal holder of real estate investment business and investor funds were allocated to the business (doc. no. # 6 and doc. N. º 7-21 of demand and doc. N. º 39 thereof). This ground of appeal must therefore be dismissed.
Fourth. - finally the appellants argue, lack of professional responsibility: a) where no mandatory link or legal relationship existing between the tortfeasor and the victim. B) Lack of evidence of negligent act or occurrence of any damage attributable to the defendants of the birth of the duty to indemnify. C) No causal link between action and damage without such damage amounts to failure to obtain the outcome of the claim or lawsuit confident. D) have not established that any damage is definitive.
Cover the appellant that claim in which there is no evidence proving the professional services relating to "legal advice", not having paid fees by the same, corresponding fees to third parties, the lack of evidence proving insufficient guarantees in the sale of the land, because there was a contract of association en participation Indomo between the applicant and, where appropriate safeguards are provided for in the Agreements 2. fifth and last paragraph of 10. º; flaunting Indomo fiduciary title to the land. He denies that there has been damage and causal link, in that such damage can not amount to failure to obtain the outcome of the claim confident, because we are dealing with an obligation of means, forcing the practitioner to deploy the activity under the lex artis no question of an outcome, which can not be guaranteed, ultimately considering that we have obtained a satisfactory result, the plaintiff having 12% of all the promotion and sales commissions, and in case of default by Indomo full ownership of the land. Notes that are not able to introduce a condition subsequent, for tax reasons, have chosen to direct transmission of the seller (previous owner of the land) to Indomo, since in that case, the seller would farms and not the plaintiff, and that could not be predicted Indomo criminal behavior. Considers the lack of causal determine that an action for damages must be dismissed, without prejudice to non compliance, the creditor may demand the return of fees paid or oppose "the exceptio non adimpleti contractus". Finally in that the damage is not definitive, founded the appellees that fact that the commercial plaintiff can still get damages in criminal proceedings or civil, initiated against Indomo or mechanisms of bankruptcy law , noting that the applicant maintains in any case the ownership of the property registration n. º NUM000, not included in the sale for Indomo.
It is settled case law that holds that the interpretation of contracts is the proper function of the organs of the request, which must be maintained unless it is absurd, illogical, arbitrary, erroneous or contrary to law, and has been reiterated in numerous resolutions, other, STS 02/19/96, 10/06/98, 01/20/00, 12/07/02, 04/21/03, 30/12/03 and 18/05/06. Doctrine also maintained in subsequent resolutions, such as STS of May 7, 2008, October 31, 2008, November 10, 2008, June 22, 2009, February 4, 2010. Also the STS of 29 January 2010 provides that "the Court has reiterated that the interpretation of contracts is the exclusive function claims court, but has always warned that this does not apply if you have done it to be illogical, absurd or contrary to law (Case January 20, 2000, March 14, 2000, December 22, 2005, December 11, 2006, January 9, 2007, November 5, 2007, May 8, 2009). ".
As for the lack of mandatory link between the parties, the matter at issue is primarily focused on determining whether the contract between the parties had the legal nature of leasing services or mandate. Distinction between both contracts has led to numerous doctrine, being not always clear and precise distinction between the two.
It is precisely the expression "providing a service" contained in Article 1709 CC is wide and imprecise hence the constant doctrinal discussions regarding the distinction between service and lease term. So that, although part of the doctrine include the mandate between employment contracts, and another, between management and cooperation, are the criteria of representation, gratuity, dependency or subordination to dominus and substitutability, which distinguish a contract with another. So the STS of March 14, 1986, March 25, 1988 and November 27, 1992, are to use the criterion of substitutability in the irreplaceability or do, to distinguish the service term of the lease, so that will mandate in the first and leasing services in the second. But sometimes, if you want such criteria have enough potentiality to differentiate from each other. So be examined business concerned in each particular case, although given that the mandate always refers to acts or legal transactions to be made by the president. As STS collects 18 January 2000, the contract was presented as effective cooperation which aims to fulfill the task entrusted to perform any act, performing services or something, since the precept cited-Article CC 1709 - has comprehensive content.
It is true that the service lease contract is not a result but of means, so that you can not by whether or not the results were satisfactory, but if the performance thereof, the defendants acted with due diligence or violated the lex artis. So it is true that the damage can not be obtained is not the result of the confident claim, that is, make a profit for the investment, but the damage, set the loss of investment deposits due to lack of diligence in the creation of guarantees of such deposits. The fulfillment of the obligations under a contract must conform to the average caution reasonably enforceable according to its nature and circumstances. The liability for negligence or default concurs when the breach occurred objectively, the obligor is not credited, if, as usually happens, is in his hand, having acted with the degree of care required under those circumstances and having attended unforeseeable and unavoidable which prevented compliance on agreed terms.
In any case, the general rules on contracts, arising from Article 1091 of the Civil Code, impose trading meet mandated in the terms agreed by the contracting parties and that are of good faith, usage and law (art. 1258 CC), and, more specifically, the rules on liability for breach of contract or negligence.
In this case we have a mixed contract of lease and service representative mandate, led to the development, management and administration of a real estate project in which the defendant concludes business, but also is responsible for developing the strategy and plan continue to carry out the building project manager. But the basic question to be solved, whatever the "name" of the contract, is whether or not the defendants complied with its obligations to the plaintiff and as principal and as agent and if they did with them was due diligence, application thus resulting art. CC 1101.
Therefore, this room does not share the conclusions it reaches the appellant, whether regarded as the link between both of leasing services, considered either mandate or seizure, or a mixed contract or complex, the fact is that the link exists and requires contractors to act with due diligence that the link leads, so the demand for accountability on the service provided, requires the concurrence of the same requirements, but when services are commissioned or contracted services of professional activity regardless that were required for performance attribution of powers, the purpose of facilitating the development of the activity to be resident outside Spain principals. Being clear that the contract included legal advice, either through the lawyers' own advice, counsel and through third parties engaged by it to perform the actions (investment project) who had given them. All emails that are provided to realize the procedure and management activity carried out by the defendants, and the doc itself. n. # 34 of the CD, it is recognized that the project has been managed and negotiated by AG2 Advisors, trade name, with revolving defendants, resulting also Doc. n. # 39 of the D (pages 306 to 312).
As for the lack of evidence of the defendants' negligent act alleged by the appellants, the plaintiffs and the court judgment to defendants charged that "the sale in favor of farm Indomo reference was made without sufficient guarantees for that the plaintiff was deprived of property without any guarantee. " But that ground of appeal can not be accepted, it is clear that no guarantee was available to prevent the loss of ownership of the land, to the extent that commercial Indomo proceeded to sell them to third who are protected under the provisions of art. 34 of the LH, having deeded the land to Indomo name, without any legal guarantee, although the information provided by Mr. Jenaro respondents, legal and design guarantees the operation, he said remain as security of land ownership (folio 291) would be reflected in the deed of sale a condition subsequent (pp. 302-305). Consequently resulting useless all legal activity deployed by defendants in preparing contracts association en participation, or the commission contract, or even in the application and subsequently filed suit against Indomo, from the moment that decided, probably for tax, deed land to Indomo name and not the commercial applicant Ponderosa Properties SL, without any guarantee to that effect, so that attends both a breach of duty of disclosure, and the duty to carry out the entrusted with the arrangements necessary to ensure reasonably diligent investment, but not the benefits or the result of it. Without this effect can be attributed to guarantee private purchase contract signed by Mr. Gennaro, to the extent that we have a contract called for a designated person, which became effective and deeded the land to be Indomo for, or the precursor of association en participation that the applicant signed with Indomo, no record contract that a public deed and has been a corresponding demand (regular procedure n. º 588/2007 of the Court of First Instance no. # 1 of Murcia). Corresponding anyway defendants as managers and investment project management, anticipate all circumstances and contingencies that may arise from how to develop such a project, including undoubtedly the commercial Indomo, proceed with the sale of the land for others. Attending therefore between the conduct of the defendants and the damage sustained by the applicant in time causation. As in any case the final damage, since the applicant does not hold title to the land and the investment lost as a result of a lack of diligence in the management entrusted to the defendants.
But in any case the appellant has proved that the mercantile Grant Thornton was involved in the design, project management and property management. Noting further that the registered property n. º NUM000, manifesting the appellant, remains the property of the defendant, is but a cistern of 6m2.
Being therefore that the appellant has not disproved their allegations, facts that declares instance judgmental tested on the legal basis of the decision Third are used and which we refer, with the above considerations, the application must be dismissed. Reiterating that the defendants acted as real investment advisers who wanted Don.Jenaro with others, through the Ponderosa Commercial Properties SL and that this advice was directed to the acquisition by the applicant of a number of properties, which were fully paid for later by companies specializing in this area, proceed to its development and construction, in order also to subsequently charge the applicant as a commission from the sale. So your client (or possibly principal) who had bought the land, no warranty or maintained on them, nor on the price paid, being therefore deductions that amount to applying the applicant itself, which is the subject of the operation. Not that there is a satisfactory result (as claimed by the appellant) or you will not get benefits or these are not expected. But forget the appellant, who was the applicant who paid the land, that they are unrecoverable, so precontract warranty association en participation can not be implemented, and therefore have lost investment funds, for reasons attributable to the defendants. Without that follow other causes in a civil and criminal defendants exempt from the consequences of the contract and its breach.
Fifth. - Court costs of this appeal the appellant must bear by virtue of Article 398, in conjunction with Article 394 of the Civil Procedure Act.
VIEWS those provisions and others of general application and relevant.
For these reasons, on behalf of the King and by the authority of the Spanish Village.