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A new twist?

Traditionally, it was a unanimous criterion that bail or guarantee contracts in guarantee of a loan or credit destined to finance the acquisition of merchandise or the payment of services, or, in general, the working capital of a company, followed the same fate as the legal business principal, even if the guarantor or guarantor was oblivious to the activity within which the legal business was held. The contractual relationship was the same for all of them.

Comunication Bureau

Date 13/05/2016

Obviously, and pending what the TS may state, the recent Judgement of the Provincial Court of Pontevedra (S. 1ª), dated April 6, 2016, may change that criterion. Based on the CJEU Judgement of September 3rd, 2015, in Case C-110/14, Case Costea v. SC Volksbank România and in the recent Order of the Court of Justice (Sixth Chamber) of November 19th, 2015, in Case C- 74/15, case of Dumitru Tarcău and Ileana Tarcău against Banca Comercială Intesa Sanpaolo România SA, comes to affirm. that if the guarantor is not related or functionally linked to the commercial recipient of the loan, but did so, as usual, based on a possible paternal-affiliate or family relationship that linked him to the true owners of the company, to Free or mere beneficiary title and by requirement of the financial entity, acted in the bail contract as a consumer and not as an entrepreneur or professional, regardless of the cataloguing that the parties involved in the main contract deserve.

From this new recognition as a consumer, the way to request the nullity, due to abusive ones, of the clauses included in the credit policy is open: for early maturity, default interest, liquidity agreement, “land” clause, etc.

Juan Carlos López-Morago - Balms Abogados Madrid

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