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Publicado el 3/5/2016
The Order of 11 June 2015 the Court of Justice of the European Union (ECJ) ruled that the unfairness of a clause in a contract between a consumer and a professional must should analyze in the abstract. In addition, the Court itself indicated the parameters based on which has carried out such a review:
a) Nature of the goods and services covered by the contract.
b) essential or not the default character, taking into account the duration and amount of the loan
c) National legislation to determine whether the consumer subject to the application of this clause can avoid the effects of early maturity of the loan.
This new interpretation of the ECJ has resulted in a new line of decisions in the provincial courts of our country in what concerns the clause in contracts early repayment mortgage.
Thus, recently the Provincial Court of Barcelona, implementing this resolution of the ECJ, discussed in abstract clauses of early maturity. That is, studies the abusiveness of each clause regardless of whether it has been actually applied, since to determine the abusiveness of the clause is sufficient that this will lead to a significant imbalance between the rights and obligations of the parties detriment of consumers.
Consequently, the Provincial Court of Barcelona not only considered unfair and therefore null those early repayment clauses in mortgage loan contracts that do not respect the limit defaults provided for in Article 693 of the Code of Civil Procedure, that is, three monthly installments, but this nullity extends to cases where the bank, before foreclose, has expected, contrived way, the consumer would have exceeded the limit of defaults provided for in Article 693 LEC.
And so, when the early termination clause constitutes basis for execution has been declared invalid in accordance with the above criteria, the dismissal of the foreclosure will remember.