The Advisory Comitee on abusive clauses in the housing sector constituted on the 29th of January 2001 :
President: Director of the departmet for aliments and consum of the Madrid Autonomous Community.
Permanent members: (1)Representative of the Public Prosecutors´office.(2)General office of Registrars and Notaries incardinated in the Justice National department (3)Consumers and Users Council (4)National Institute for Consumers (5)Trade control work group incardinated in the Comittee for Cooperation in Consum
Ad hoc Members: (1) Representatives of the Housing, Architecture and Planning department of the in the Ministery of Economic development and Public works (2) Association of builders and developers
All agreed that, according to Comsumers Act, in an off plan purchase contract where financiation is implied:
"If the financing is not obtained (either by not subrogation on previous mortgage loan or not obtaining of new one) the buyer will have to pay that amount in a ………………….. period’s time from the notification of the financing denial to the buyer and, in every case, till the moment of requirement for the signing of public deed after the end of the works. The breach of this obligation will be enough for the cancellation of this contract by the seller.
Nevertheless, the buyer can cancel the contract, if the Bank does not accept his application for financing, with devolution of all the advanced amounts within the same deadline established for the previous paragraph "
So, if the buyer does not obtain the financiation that the contract implied in a more or less explicit or express way, and decides to cancel the contract, according to this agreement, needs to be granted the cancellation and amount ( no interests) be refunded.
Specially as Judges, according to provision 3 of the Civil Code need to apply Law :
"En relación con el contexto, los antecedentes históricos y legislativos, y la realidad social del tiempo en que han de ser aplicadas, atendiendo fundamentalmente al espíritu y finalidad de aquéllas"
Which is translated as: "In relation to context, historic and legislative precedents and social reality of the time when these need to be applied, considering primarily the spirit and aim of the regulations".
Do not see it tooooooo clear?