Publicity - Part Of The Contract

Published on 19/11/2007 in Buying Process

Legal SpainAre you buying a house and the unit does not correspond to the advertised one?

The following article explains the legal grounds that allow requiring the correspondence of the contractual object with the object offered by means of any kind of advertisement.

The article 3.2 as well as the article 3.1 of the Royal Decree (RD) 515/1989, April 21, about Protection of Consumers in the moment of providing the information while sales contract and dwelling renting defends the principle of honesty in the matters of offer, promotion and advertising of rent and sales properties, prohibiting the deceitful advertisement.  

The article 3.2 is valid in all the territory of the State and it can not be ignored by the Autonomous Communities, which have assumed the full jurisdictional capacity of defence of the consumers and users in accord with the additional clause 2.RD 515/1989, April 21, 1989.

In its turn, the article 3.2.RD 515/1989, April 21, 1989 extracts the consequences from the mentioned principle on having established, that the buyer or the tenant of a dwelling would be able to demand as much information, characteristics and conditions relative to the construction of the dwelling, its place, services and facilities, acquisition, use and payment, as there were included in the offer, promotion and publicity of the same ones, “even if they do not appear expressly in the celebrated contract.  With general character, this article supports and expands the Law 26/1984 from July 1984, which proclaims, that the content of publicity would be exigible by consumers and users even if it does not appear expressly in the celebrated contract, document or received voucher.

We can not help mentioning the Judgment of the Supreme Court (JSC), ( source of Law in Spanish Legal System) Courtroom num.1 from January 27, 1977, already classical in this matter, with its argument of the same compulsory force of the exposed in the offer, publicity or propaganda in general.

The article under discussion is the result of the reiterated jurisprudential doctrine, according to which, the promotion of the selling of housings is not fulfilled delivering only the housing, as when the buyer takes possession of the same one, but this obligation also spreads to the rest of the incidental elements, with which the housing is being defined in the contract, and even in the papers given to the buyer before the signing of the contract, such as plans, publicity, building specifications or project of execution, papers, that is necessary to understand,  that form a part of the contractual content.

In this way, it is confirmed that the seller has an obligation to fulfil the exposed in his advertising brochures, since the influence of publicity is essential in the moment, when the consumer decides whether to buy. Due to this fact, the content of publicity forms a part of the contract (JSC, Courtroom num.1 of November 8, 1996 and JSC, Courtroom num.1 of June 15, 2000, between others). JSC, Courtroom num.1of July 21, 1993 indicates, that the building company must finish the construction so, that it should assemble the characteristics offered publicly to future buyers.

The doctrine explained here allows stating that the project of execution plays an objectively important role for the promoter/seller each time, when it performs the descriptive function of the contractual object, since it makes compulsory for the promoter to construct the sold dwellings in accordance with it. This is the compulsory force of the project, as of the document of reference, which would derive from the arranged in the article 2 of the Law 26/1984 of July 19, 1984, that defends the information as basic right of the consumer. And the article 8 of the Law 26/1984 of July 19, 1984 recognizes the compulsory force of the offer, promotion and publicity.

The RD 515/1989 of April 29, 1989 expands this regulation about protection of the consumers, because it indicates, that at the moment when lease or sales contract of a dwelling is being signed, the information, characteristics and conditions relative to the contracting of a dwelling, which find place in the offer, promotion and publicity would be exigible, even if they do not appear expressly in the celebrated contract. Judgment of Regional High Court of Guadalajara, 10 of April, 2003. 

Really, the jurisprudence has repeatedly commented on the effects of publicity in determining the compulsory content of the contracts. And it affirms, that publicity of an object, especially, if the object still does not exist, forms an essential part of the offer, as it is recognizable by the doctrine and proclaimed by the article 8. Law 26/1984 of July 19, 1984, a General Law for the Defense of the Consumers and Users, which generates responsibility of the offerer. JSC, Courtroom num.1, on the 1st of September 29, 2004.

By continuing we give you another example supporting the statement made above.     JSC, Courtroom num.1 of November 8, 1996 affirms, that knowing the compulsory force of publicity, the General Law for the Defense of the Consumers and Users and general articles about obligations and contracts,  Regional High Court had no right to ignore the thirty five brochures of the advertising, that were received together with the court files. And if the Regional High Court had borne in mind these brochures, its evaluation of the proof results to be, when less, illogical, since the brochures are documents, that contain advertising activity, with the intention of attracting the clients, and a true offer is being clearly constituted on their pages.

As the Regional High Court failed to understand it in this way, it infringed the article 57 of the Code of Commerce, the principle of the good faith and the article 1283 of the Civil Code (CC), because the publicity forms part of these contracts. In opposite case, it should have been expressively said in the contracts, that the content of the advertising brochures remained outside the contract. To come to this conclusion, it is not necessary that the promoter would have made use of trick or fraud, since the article 8 of the Law 26/1984 of July 19, 1984 does not require this. The indicated article becomes infringed too, specially bearing in mind, that the interpretation is related to the RD 515/1989 of April 21, 1989.

The mentioned JSC, Courtroom num.1 of November 8, 1996 puts into interrelation the next assumptions:

- JSC, Courtroom num.1 of January 27, 1977, which protects the buyer or buyer of a flat who, on having given his conformity in the acquisition, " was guided by " the printed leaflets of propaganda spread by the building company ", since " the private contract signed by the parts was very sparing in descriptive elements, and it was logical ... that the buyer of the flat relied on the promised in the brochures of propaganda, in accordance with the principle of good faith proclaimed in the article 1258 of the CC, and believed in their content, finding it compulsory for the company”, moreover, the planes were in tune with the public line of promises and with the requirements of town planning.

- JSC, Courtroom num.1 of February 19, 1981 , which estimated that the sports ground and the swimming pool were included in the contract since “the public offer of the sale included them” and what have served without any doubt as public and general offer, and as long as it is not expressively excluded, remains estimated as a base of this offer, and therefore in noway it supposes an erroneous interpretation of the article 1253 of the CC in relation to the article  1283 of the CC.

-JSC, Courtroom num.1 of April 5, 1999, which estimated nonperformance, since in the publicity that the building company used to capture buyers, there existed an area of recreation and free time, contemplated in the Technical Project, but in this zone of recreation, three housings were unduly constructed.

-JSC, Courtroom num.1 of November 7, 1988, which says, that publicity of an object, especially, if the object still does not exist, forms an essential part of the offer, as it is recognizable by the doctrine and proclaimed by the article 8 of the Law 26/1984 of July 19, 1984, and generates responsibility of the offerer.

-JSC, Courtroom num.1 of January 20, 1989, which exams the description of building specifications, that the builder-developer put in the commercials, and affirms, “that on one hand, it allows to the Court to come to conclusion, that the influence of publicity on the conduct and will of the actors” plays a decisive role at the moment of contracting, and on the other hand, it reveals the existence of shortcomings and omission of details in the terminated work, with regard to the offered publicly and contemplated in the description of building specifications and corresponding contracts. "

-Finally, the JSC Courtroom num.1 of July 21, 1993 indicates, that the building company must finish the construction so, that it should assemble the characteristics offered publicly to future buyers.

Written by: Maria de Castro

About the author:

Maria de Castro is a Spanish Lawyer and the Director of the Law Firm www.costaluzlawyers.es.

Costa Luz Lawyers are contract and consumer real estate law specialists covering all parts of Spain. You can contact Maria at mldecastro@costaluzlawyers.es




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Comments:

dvdblky said:
30 January 2009 @ 18:17

How long has the developer got to provide added facilities promised in the sales material - ie if, say, a spa, shops, hotel were promised as part of a resort but were still not built 3 or 4 years after the rest of the resort was finished, can the developer say that these will still be provided in the next 5 years? When is a reasonable time for the developer to ensure that all facilities that were advertised at the outset and were relevant to the decisions made by the purchasers of homes on the resort are provided?


Janice2530 said:
05 January 2009 @ 22:53

We have already completed and furnished our apartment. Given poor facilities and no sign of building commencing we are struggling to rent our property. In these times of recession we are finding it difficult to sustain the financial upkeep of our property. This was purchased as an investment that we were assured by sales rep would 'pay for itself' after parting with substantial deposits. This has been a nightmare time for us and I see no end to the worry caused.


Janice2530 said:
05 January 2009 @ 22:53

We have already completed and furnished our apartment. Given poor facilities and no sign of building commencing we are struggling to rent our property. In these times of recession we are finding it difficult to sustain the financial upkeep of our property. This was purchased as an investment that we were assured by sales rep would 'pay for itself' after parting with substantial deposits. This has been a nightmare time for us and I see no end to the worry caused.


Kenny_B said:
30 June 2008 @ 20:24

Gleaming


robmacm said:
20 December 2007 @ 10:23

Why do the Spanish bother having so many laws? Nobody, especially lawyers, pays a blind bit of notice to them. After the experience that we have had buying in Spain the only applicable law is the law of the jungle. One of life's worst experiences and we will not be repeating it.


mariadecastro said:
24 November 2007 @ 17:49

Of course developers are obliged to communicate changes and need to have your consent on them. If absolutely unavoidable for the constructions, you are entitled to a compensation.


Chiz said:
20 November 2007 @ 10:43

Not so much a comment on this article which makes it abundantly clear that developers cannot just change/ remove things that were in their publicity.
More of a related question - If a developer does need to change something in the build that makes it different from his original publicity, is he not required to inform anyone who has paid deposits and is awaiting completeion of the build?
My question relates to Polaris World who seem unable (maybe unwilling?) to keep me informed of significant changes to the resort and build timescales.


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