Can companies claim for the IRPH clause?

Jurisprudential analysis on the voidability of IRPH clauses contained in contracts signed with natural or legal persons who are not considered consumers

The recent CJEU ruling of March 3, 2020 has come to confirm that the IRPH clauses contained in mortgage loan contracts signed by consumers are suitable to be subjected to the double control of incorporation and transparency that would determine, in the event of overcome it, its declaration of abusive in accordance with the provisions of the General Contracting Conditions Law and the General Law of Consumers and Users and, with it, its radical nullity.

This pronouncement leads us to ask ourselves, are the IRPH clauses contained in mortgage loan contracts signed by natural or legal persons that, with respect to said contract, does not have the status of consumer?

To answer this question, we must start from a premise: the consideration of a borrower as a consumer determines the possible courses of action against a bank in order to obtain the annulment of the clauses predisposed by it in the subscribed mortgage loans.

Thus, when a borrower is considered a consumer, the highly reiterated and consolidated jurisprudence of the Supreme Court has established that any clause predisposed by the bank that does not exceed double < strong>incorporation control and transparency control, being that:

• The control of incorporation or inclusion regulated in the arts. 5 and 7 LCGC “refers to the grammatical and semantic comprehensibility of the clause”, so that “to pass the incorporation control, it must be a clause with a clear, specific wording and simple, that allows a normal grammatical understanding and that the adherent has had a real opportunity to know at the time of the execution of the contract” (Supreme Court Judgment No. 57/2019, of January 25, 2019).< /li>
• For its part, the transparency control is a plus compared to the incorporation control since, through it, it is required not that the clauses be written in a clear and simple way (which is typical of the incorporation control), but rather that the consumer has been able to have real knowledge of the content of the same that allows him to foresee the economic consequences of the contract (Supreme Court Judgment no. 314/2018, of May 28, Appeal 1913/2015).

As has been established by the Supreme Court, while the joint applicability of incorporation and transparency controls are reserved solely for contracts signed with consumers, incorporation control is Applicable to all contracts signed with individuals and/or legal entities, whether or not they are considered consumers, if general contracting conditions have been used in the contract.

Such a possibility is based on the fact that the general contracting conditions can occur both in the relations of professionals with consumers and in the relations of professionals with each other, being required in both cases that they form part of the contract, are known and written in a transparent manner, with clarity, specificity and simplicity, requirements to which it is necessary to add that of non-abusiveness of the clause when dealing with a consumer. As stated in Sentence No. 214/2020, of March 9, of the Court of First Instance No. 6 of Lleida (one of the first to resolve a claim for an IRPH clause after the issuance of the Judgment of the CJEU) that:

“the general condition is present in any type of contract, and between any type of person, but the abusive condition, of a general condition, can only be predicated of consumers.”

This is established by the LCGC Statement of Reasons itself, indicating that “the Law intends to protect the legitimate interests of consumers and users, but also of anyone who contracts with a person who uses general conditions in their contractual activity”, and who

“the general contracting conditions can be given both in the relations of professionals among themselves and of these with consumers“, premises that have been echoed by the Supreme Court (among other , in its Judgment No. 669/2017, of February 14, to affirm that “It seems clear that the use of general conditions makes economic sense, so that in certain sectors and in a relevant way in banking contracting, it was decisive that the personalized treatments of the terms and conditions of the contracts be replaced by the contracting by means of general conditions of mass traffic, in which the recipient -whether he is another professional or businessman or if he is a consumer or user-, accepts or rejects them without the possibility of negotiating individually, giving rise to what STS 406/2012, of June 18, calls “serial contracting” and qualifies as “an authentic way of contracting, differentiable from contracting by negotiation, with its own specific causal regime and budget”.

Consequently, IRPH clauses contained in contracts signed by natural or legal persons who are not considered consumers may be subject to incorporation control and, if they do not exceed the same, they will have to be declared null.

In such terms –although in reference to a floor clause – the Supreme Court ruled in its recent Judgment No. 57/2019 of January 25, 2019, declaring the nullity of the floor clause contained in a mortgage-backed loan signed by two self-employed than for the financing of the purchase of a hairdressing salon, and this considering that the aforementioned clause did not pass the incorporation control since neither the clause had a clear, specific and simple wording that would allow a normal grammatical understanding of the same, nor the adherent had a real opportunity to know it at the time of the execution of the contract.

For all these reasons, the feasibility of an action for annulment of an IRPH clause predisposed in a mortgage loan contract signed by a non-consumer will depend on the claimant proving the failure to pass the incorporation or transparency control, noting that all the jurisprudence that has estimated the nullity of clauses in contracts signed by non-consumers as a result of failure to pass the incorporation control have referred to floor clauses or complex financial contracts , there being no jurisprudential precedents that apply such doctrine to IRPH clauses.

It may interest you:”Claim for IRPH mortgage compensation”

María Olivares Sánchez
Lawyer member of the Commercial Law Department

04/16/2020