THE decision 168/2020, of March 11, 2020, made by the Spanish Supreme Court, has clarified whether companies, the self-employed and SMEs, could claim against the floor clause that banks included in their mortgage loans, even in those cases in which the loan was required to be used by the borrower in their professional activity.
In this resolution, the court concedes that, although it is true that it is not generally possible to apply the controls and protection measures provided in the regulations for the protection of consumers and users, in the cases where the borrower is a professional, this does not mean that professionals are totally unprotected against possible abuse from banks.
According to the resolution of the Supreme Court, in contracts between professionals, although transparency and abusiveness controls are not applicable, in accordance with the general contracting conditions law, the floor clause must pass the incorporation control established in its article 5.
This control in the assessment by the court suggests that when the borrower gave his consent to sign the loan, he should have been able to know of the inclusion in the contract of the floor clause and therefore its content and consequences.
This is how the Supreme Court understands it by establishing that:
“For a general condition of the contract to pass the incorporation control, it must be a clause with a clear, concrete and simple wording, which allows a normal grammatical understanding and that the adherent has had a real opportunity to know at the time of entering into of the contract.
“That means that, besides the parameter of clarity and comprehensibility, the requirement of the possibility of knowledge must concur, since the incorporation control is, fundamentally, a control of knowability.”
In this specific case, there was a mortgage loan to acquire a taxi licence. In this loan, the bank included a clause limiting the variability of interest (floor clause), but the bank did not provide the clients with the precontractual documents and the information they were obliged to in accordance with the law (the FIBER).
Therefore, the court understood that the floor clause did not pass the incorporation control since the lack of documents and information needed by law to be provided by the bank meant that the clients were not able to know the real existence of the floor clause.
Therefore, if you are a self-employed, entrepreneur, run a small company, etc. you can demand the nullification of your floor clause, as long as it does not contain a clear, concrete and simple clause, or if the bank did not provide any information about it, prior to signing before a notary, so the borrower had no knowledge or possibility of being aware of the floor clause.
Therefore, if you need legal advice regarding the FLOOR or suelo mortgage clause as it affects consumers, businessmen, professionals, etc. contact our law firm and we will help you.
The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.
Carlos Baos (Lawyer)
White & Baos
Tel: +34 966 426 185
E-mail: info@white-baos.com
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