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