SUCCESS CASES. IN DIEM Abogados: SUPREME COURT orders Developer to return all advance payments
Area: Civil and Contracts. Supreme Court.
SUCCESS CASES: SUPREME COURT orders Developer to return all advance payments delivered for property purchase
ANGEL JOSÉ DEL PINO IBÁÑEZ, Attorney at IN DIEM Abogados, obtains entirely favorable JUDGMENT before the SUPREME COURT ordering a DEVELOPER to return to a couple €30,580 delivered in advance in a property purchase transaction, as it was not possible for the couple to assume the mortgage loan arranged by the developer.
The JUDGMENT declares, among other matters, the following:
“having examined the content of the contract and the performance given to it by each of the parties, in no way can responsibility for its failure be attributed to the buyers, as it suffices to read it to verify that in the section ‘Agreement for assumption of the mortgage by the Buyer’ it states that ‘The Seller declares that the Credit Institution has authorized the subrogation of the Buyer….’,”
“Well then, once the subrogation was rejected by the banking institution, the defendant required the buyers to seek different financing to fulfill their payment obligations and, given the impossibility of doing so and making the agreed disbursements, the seller unilaterally terminated the contract, communicating this to the buyers.
From this it follows that in no way can the frustration of the transaction be attributed to the latter and the ‘explicit termination condition’ established by the seller is not applicable to their detriment, according to which in case of non-payment there would be grounds for termination of the contract with the purchasing party losing the amounts delivered up to that point as damages, therefore –without needing to examine the alleged abusiveness of such clause, to which the first ground of appeal referred– its application is not appropriate and the return of the amounts paid as part of the price by the buyers plus the corresponding interest is warranted.”
The aforementioned judicial resolution, in addition to ordering the DEVELOPER to fully return all amounts delivered, orders payment of costs and interest.
http://www.in-diem.com/angel-jose-del-pino-ibanez/
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