As previously noted, individuals and also companies affected by a mortgage floor interest clause, or by the purchase of preference shares, or Bankia shares on its IPO, or etc., can, in most cases, successfully claim against banks.
All such legal actions, whilst not identical, have many similarities with each other, usually they contain the possibility of a legal petition for the nullity (voidability to be exact) of part or the entire contract, to be declared.
Legally the basis for these legal claims is found in the article 1261 of the Spanish Civil Code (CC), which says that for a contract to exist, there must be present within 3 requirements: the agreement and consent of the parties, there must be an object of the contract, and there must be a cause of the obligation. Failure or defect in any of these requirements, pursuant to Article 1300 of the Civil Code could result in the contract being void.
Regarding the deadline for claiming by those affected, Article 1301 CC says that the action of nullity lasts four years, and in cases of error, fraud or false cause, this limitation period of 4 years starts to run from the completion of the contract.
The Spanish Supreme Court has clarified when it should be understood that the limitation period of four years starts for these types of legal actions. In various of their judgments, including numbers 769 of 2014, and number 376 and 489 of 2015, they make it clear that the period of 4 years does not begin to count from when product is contracted, but rather from the consummation, or where appropriate, from the moment the affected is made aware of the existence of error, wrong information, etc, That is to say, from the occurrence of a fact for which the affected can understand and be aware, depending on the product concerned, the existence of circumstances that make the contract voidable.
To use the case of Bankia shares, we understand that the term of four years should start running from May 2012 at the earliest, which was when the annual accounts of the bank were reformulated and investors could know the real situation of Bankia. This gives us a limitation period of until May 2016 at least to claim.
Where the sale of toxic bank products is involved, the period of four years should start, for example, from when the customer is aware the product sold was not an ordinary deposit but a risky and complex product, or from when they are aware that the investment made cannot be recovered, etc.
If you have any questions regarding this matter, please contact.
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)
Spanish Law firm solicitor attorney barrister.
Alicante, Denia, Costa Blanca Marina Alta
White & Baos 2015 – All rights reserved
