Contract Law in Spain

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 I did inform my lawyer during the delay, that I was concerned about Aifos going under. The answer I got back was that we were at the mercy of the courts, and they wouldn't be hurried under any circumstances.  My fears came true and the delays were blamed on the courts not being able to cope with the heavy work load, which obviously shoudn't have been my problem.

So he didn't follow the procedure to place a complaint to the Consejo General del Poder Judicial" (Judicial General Council) ? Why not? If these procedures are established he should have issued a complaint on your behalf, shouldn't he? This is a nonsense to suggest that you were just at the mercy of the courts. He should have been bringing attention to the fact that you were being placed at risk by the Justice Administration system in this way. How else can you record this incident that placed you at risk????

It begs the question, do many Spanish lawyers not use this administrative route to log problems into the system? Where is their responsibility to protect your interests in all of this? Is there not a standardised practice to follow here? Could this be classed as negligence on his part, or is it ignorance, or even that he has no trust in the complaints procedure? I would have thought you need to establish this from him.

I know Maria has mentioned in previous postings that she submits complaints in instances such as this.

The only way that we will start to gain accountability for those who are placing us at risk,  is for us to start asking questions of this nature. We should not accept ignorance as an excuse. Nor shold we sit idly by and let these consistent delays that are compromising justice go unnoticed.

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I completely agree with what you are saying, but I don't know for sure if all moves to speed things up were done?.After years of being conned by the UK agent, OVP, then their conveyancing crooks UK Conveyancing, then by a Spanish lawyers GV&A  who as far as we could tell were in cahoots with the biggest crooks of all Aifos, we found Lawbird, and following some favourable reports about them, we gave them the details of our situation and they confirmed we had a strong case, and had been pretty well stitched (goodstich) up by the 4 parties mentioned. They secured the embargo and went ahead to win our case against Aifos and OVP, so I have always assumed they have worked in our best interest. Despite my concerns about the delay in the cour case they insisted nothing could be done to speed up the process. I had to believe in somebody sooner or later, so I took it that this was the truth, and put it down to the courts hopeless delays that we could do nothing about?.   I said I thought the delay was unreasonable, Lawbird agreed but said it's not unusual to have a case delayed by this time.  Like you, I find it completely unacceptable, but would like to think Lawbird would have put a case forward for the delay if they thought there was a good chance of winning that case?.

There is nothing to stop you asking the question did they submit the compaint on your behalf? We have to start making the Justice Administration system accountable and this is the only way I can see that you can log your compaint. into the system.

So if they haven't done so, I would ask why not? It's not an unreasonable question is it?.......

If all lawyers did this, then surely the evidence would be stacked against the system. We need to be more proactive in this regard and not just rely on "hope".

The bottom line is that lawyers should not just accept the status quo......they should be bringing these unjustifiable delays to the attention of those in power, both within their Jusitce Departments and to the attention of the Spanish Government.

This message was last edited by ads on 20/12/2010.

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that's a fair comment. I'll get on to them and let you know the response. I agree with what you are saying, but when you are relying on the only  person you think you have found who is on your side, and despite voicing  concern about the delay, being told 'nothing can be done to speed things up',  then rightly or wrongly you don't want to upset them by giving the impression you are telling them their job?. That's why I haven't been more pro-active on that point. 

This point of lawyer evidence stacking up against the system is very valid. They hold a huge amount of evidence of wrong doing which can't be denied. This evidence should be seen and answered to by those responsible for justice.

I do understand Goodstich, and of course you don't want to be perceived as telling them their job. But there is a fine balance between accepting the stauts quo and following every possible avenue to report back such abuse, and I would be interested to know just how many lawyers are actually doing this as standard practice? And these are the key words STANDARD PRACTICE!

So it is essential that everyone at least asks the question of their lawyers. Any good lawyer would not perceive this as aggressive, but merely ensuring that all possible avenues have been explored. That's all............

We are entitled to be kept informed and it's essential, given the insecurities identified by all too many on this forum, that we are kept regularly informed of the status of our cases and be kept advised as to what procedures are being followed. Surely this is not too much to ask given the monies we are paying for our fight for justice?

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quite right, we should indeed be kept advised on what procedures are being taken, or if not, why not? 

Sadly, I wonder if corruption in all its ugly forms is propably still so embedded in the system that being 'in the right' still often counts for little?.  I wonder if i'd been prepared to throw some cash in the right direction, how quickly my case would have been heard?.  I hope that's being over cynical for everyones sake who's fighting for justice?, but I have little faith left in 'real' justice in Spain.

Part of the long overdue changes should include harsh  penalty clauses for any delays that rob the victims of real justice. That sort of common sense threat in itself should go some way to getting the legal/justice system back on the right road if adhered to?, but I fear there are too many fingers in too many pies for that sort of common sense ruling that would suit anyone who has nothing to fear from a decent system of real justice.

Dear All,

are we whistling in the wind again????

all this reasoned argument is just so much hot air and will lead absolutely no where, because Spain is totally corrupt most of the time, it is their way of life and they show little signs of changing.

Goodstitch's judge did not take six months to make a ten second decision because he/she was honest and trying to do a good job of work. No no no it was the big C at work as almost always.

With the big C at work does Techno really think that his two small added conditions to a standard contract suddenly made it a CAST IRON CONTRACT, proof against all corruption, surely not, he cannot possibly really believe such nonsense.

His success was clearly because the big C was absent. Good will prevailed because it was actually there and the corruption for once was not.

If you have any doubts ask

Peter 2010
Estepona

Isn't Maria's silence becoming deafening?

Regards

Norman

I thought you were clear on linking character of publicity: we have discussed on this a lot here in the Forums and there is an old article, also posted here, on this.

I asked an unemployed russian friend at the moment to do for me the translation of the article, the English seems not be too good but the article ( which has been published in EOS for years) gives to you all the grounds for the defence.

Are 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, andeven 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 

mariadecastro

thanks for the info' on this subject. So the finished property must be as descibed in the publicity documents or advertising brochures, because these brochures and their content form part of the contract. Looking at your case studies there is little doubt that the buyer should get what was advertised and no less, but out of the people you have known who have taken their cases to court, have they all won their case and recieved either a full refund or reasonable compensation for being cheated?. What I'm saying is that,  though it's good that the law is there, in reality are the victims getting real justice and are the crooks getting real punishment that will deter others from cheating in a similar way?

Cases are all being won. Refunds are depending on solvency of the developers.

normansands,  Do not to shoot the messenger!  Maria is a good lawyer and can quote the law and cases, but is not in the business of making judgements.  Whilst there are undoubtedly many corrupt lawyers in the Spanish legal system, the main fault lies on a higher plane, the Judiciary and the politicians.  It seems that most of the time, they are influenced by money (power) and introduce delays in order to allow corrupt and rich businessmen off the hook leaving the small (poor) man to take the hit.  A hangover I think from the days of Franco.  But in condemning the Spanish legal system do not labour the impression that ours is so pure, or without nonsensical judgements.  How many rich celebrities do we see getting away with illegal conduct because they can explore loopholes in the law and how many cases of illegal immigrants who commit strings of crimes do our UK judges allow to stay because of their particular interpretation of the "yuman rights act"?  Is that not corruption of sorts?  It may not affect you and me quite so directly, but it's there just the same in every country.

Thanks Xetog

Maria

xetog

perhaps it's time lawyers in Spain did start making more judgements?  When so many cases are so clear, then why not?, what have they got to lose by saying   ''yes many have been cheated in Spain by X,Y,Z,  in  the system, we know that, we accept it, and we intend to do what we can to change this by backing up the petitions will all the evidence we hold''   Unless lawyers have a 'conflict of interests'  then why not back the good guys at every turn?.

We don't need anyone sitting on the fence, the time for that has long passed. We need recognition of all that's wrong and support from every person involved to help force long overdue change, and in the short term make sure those cheated by poor laws, court delays, lack of regulation etc are given 'real' justice in the form of returned monies. Nothing less is acceptable.

maria

good to hear cases are being won, but if refunds are dependent on solvency, are cases being heard fast enough to ensure the company is solvent when sentence is passed, or is the situation xetog just mentioned about delays allowing rich and corrupt businessmen off the hook, still dominating the outcome of many victims?

goodstich.  Such is the injustice that has been heaped upon you that any comment from me would seem to be superfluous as well as inadequate.  I think I wrote in another thread that it really is a numbers game.  If every Brit in Spain rose up and protested in Madrid (unlikely), but that would represent about 1% of the overall population.   The Spanish have their own economic problems and the majority are likely to be at the very least apathetic to our situation.  I read somewhere the other day that a good way for the Spanish Government to raise capital would be to implement a steep rise in property taxes, now that would be an injustice and cause all of us to bleed and the bad guys would still continue to get away with it.

Maria

Thank you so much for that information. I think what many seem to be saying is that we need a concerted effort by good lawyers to proactively support and endorse the efforts of petitioners, by providing their own evidence to demonstrate that there is a significant problem here. Could this evidence then not act as undeniable proof to all the powers that be (within the EU if necessary) that we have a case to answer in terms of making the government ultimately responsible for their lack of judicial enforcement?

Xetog,

It's not that we are asking the Spanish people to make the sacrifice, we are asking that developers/Banks be made accountable via a just legal system that follows the rule of law to the point of recompensing those who have won their judgements. This is not happening for those who have been waiting years for outstanding appeals to be resolved and/or enforcement orders to be enacted etc.

xetog

As for the injustice heaped on me, well yes of course i'm very angry, but I certainly wouldn't ever consider your comments as superfluous or inadequate. If I did, I would consider myself blinded to the situation from the angle of others, and I hope never to do that.

 With regards to Brits in Spain I know what you mean, but doesn't the current situation in the property industry affect alot of Spanish people too?   Surely being such an important industry in Spain, most Spanish would like to see the property market much improved through more regulation, less corruption, better justice etc, ........or is that just wishful thinking, and most don't give two hoots?.  I realise that Spain's costa's and the problems are just a part of Spain, but apart from crooks I would have thought it would be in everyones interest to attract investment back to Spain through change to the system that's done so much damage?.

Dear All,

thank you Maria, unfortunately it does not explain why Techno persists in his view that the Spanish judges would take a different view.

Neither does it explain why Goodstitch's case was ever considered in court, I claimed a 2 minute judgement on it just based on common sense, a ten second judgement with the judge's undoubted knowledge.

As Goodstitch has pointed out at length there was history involved and that history was known to all and sundry, every person connected with the court and the industry knew that history. The whole process was a fraud against the consumer and citizen, it just was not necessary. It should have been automaticly found by dismissing/not accepting the developer's case.

There will never be justice in Spain whilst every case has to be fought on its "merits" and those that cannot afford the costs will be automatically excluded and robbed. Or perhaps the lawyers will be brought under control and all contracts will be CAST IRON in favour of the consumer as your explanation suggests. There were hundreds of lawyers involved at Casares with these contracts and thousands of them nationwide, all to be distrusted as Techno distrusted his.

Regards

Norman