Murcia Appeal Court very rightly explains that the fact that there was a change of contract object ( change of apartment unit) along the history of the contract does not involve the cancellation of the granted Guarantee.
Main reasoning being the protective character of Law 57/68 and its imperative, non renounceable rights.
Details of a Provincial Appeal Court Sentence won against Banco de Valencia S.A. (now Caixabank S.A.) just notified to a client who had reserved off-plan from Corvera Golf & Country Club S.L. The case was won in the First Instance Court against Corvera, Banco de Santander & Banco de Valencia. Banco de Valencia (now Caixabank) appealed. The Provincial Appeal Court dismissed the Bank’s Appeal and upheld the First Instance Sentence in full.
Re: YOUR CASE AGAINST CORVERA GOLF & COUNTRY CLUB S.L., BANCO DE SANTANDER S.A. & BANCO DE VALENCIA S.A.
PO-xxxx/2011
Please find attached Sentence number xxxxx/2015 from the Provincial Appeal Court Section 4 in Murcia.
I am pleased to advise you that the Provincial Appeal Court has dismissed the Appeal filed by BANCO DE VALENCIA S.A. (now CAIXABANK S.A.) and upheld the First Instance Sentence dated 20 December 2013 issued by the First Instance Court No.14 in Murcia, in full.
The final paragraph of the Provincial Appeal Court Sentence delivered on 12 March 2015 and notified on 27 March 2015 states:
“That dismissing the Appeal filed by Banco de Valencia S.A., now Caixabank S.A. against the Sentence of the First Instance Court No.14 in Ordinary Procedure xxxx/2011, we fully confirm that Sentence and impose the costs of this Appeal on the Appellant Bank”.
So the Provincial Appeal Court has dismissed the Caixabank S.A. Appeal and upheld the First Instance Sentence in full. Costs of the Appeal are imposed on Caixabank S.A.
In the First Instance Sentence, with regards to the pre-determined expiry dates of the Bank Guarantees the Judge stated:
“Article 7 of LEY 57/1968 provides that the duty to guarantee the repayment of the amounts paid is compulsorily imposed and inalienable. So the interpretation of the terms of the guarantee must always be performed for the full and complete protection of the buyer, given the protective nature of the Law.
That is why we should not consider the date of expiry of the guarantees as it cannot be fixed in this way. Pre-determined expiry dates are not as intended within the scope of guarantees provided under LEY 57/1968 as the only limitation period provided for in this Law is in Article 4 which states that the guarantee only expires upon the issuing of the First Occupation Licence.
It is for all these reasons that Banco Santander S.A & Banco de Valencia S.A. must be condemned jointly and severally with Corvera Golf & Country Club to the limit of the amount guaranteed by each of these entities”.
Banco Santander S.A. did not Appeal, however, Caixabank S.A. based its Appeal on the fact that there was a contractual novation held between the developer and the buyer. It stated that the novation, consisting in changing the property from No. XXX to No. XXX resulted in the Guarantee being extinguished as there was no new Guarantee issued.
The Appeal Court disagreed with Caixabank S.A. and stated that the ‘Novation did not result in the extinction of the Guarantee’.
The Court further stated:
“Considering the nature and purpose of the Guarantee initially constituted, which is a safeguard designed to protect off-plan deposit funds covered by the compulsory and irrevocable rights as per Article 7 of LEY 57/1968, the interpretation of the terms of the Guarantee are for the full and complete protection of consumers.
We are therefore in the presence of a Special Endorsement governed by that Law and not an ordinary guarantee regulated by the Civil Code.
As stated in Article 1 of LEY 57/1968 the purpose of the Guarantee is to ensure the repayment of off-plan purchasers funds should the housing not be started or completed in accordance with the purchase contract. Under such an approach, we understand that the mere contractual novation performed; consisting of changing of the housing to an identical property type in the same property development does not determine the extinction of the Guarantee. The document signed between buyer and developer stated that the amounts paid for the initial property were transferred to the new property. There is, therefore, no contract termination, but merely a partial renewal of the contract which does not determine any modification of the object of the Guarantee.
On the other hand, we do not accept the arguments of the appellant Bank stating that the novation should result in the return of the Guarantee to the Bank for cancellation. This is because the unilateral imposition of such a temporary term of the Guarantee would be contrary to LEY 57/1968, which imperatively requires that such cancellation only occurs on the date of issue of the relevant certificate of first occupation”
Alpandeire, Serranía of Ronda, Málaga, South eastern Spain, at facebook.com