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Case Details

Case Details
National ID TS (Sala de lo Civil, Sección 1ª) Sentencia no. 533/2015 de 3 diciembre
Member State Spain
Common Name link
Decision type Supreme court decision
Decision date 03/12/2015
Court Supreme Court
Plaintiff BBVA, S.A
Defendant LOGIFRUIT S.L.
Keywords distance contracting, off-premises contract, written confirmation

Consumer Rights Directive, Chapter 3, Article 7, 2. Consumer Rights Directive, Chapter 3, Article 8, 6. Consumer Rights Directive, Chapter 3, Article 8, 7.

The written confirmation of a distance contract does not result in the same being concluded. It only proves the existence of the contract and the consent granted. A distance contract is only deemed to be concluded when both offer and offer’s acceptance take place. Consumers do not have right of withdrawal in SWAP contracts, even though they are concluded by distance means.
A SWAP contract had been entered into by phone between the plaintiff and the defendant (two companies), the conversation being recorded, on the 8 October 2008. The written confirmation of the contract arrived on the 27 October 2008. On the 13 November 2008, the defendant sent a bureaufax to the plaintiff expressing its intention not to conclude the contract in the end. The defendant alleged that the contract was not to be deemed concluded until it manifested its acceptance following the reception of the written confirmation. In the first instance and in the appeal, the contract had been declared null for not having been concluded.
The Court ruled that written confirmation has proving effects only and thus it is not the benchmark for the conclusion of the contract, but merely serves to evidence the consent of the parties to conclude such contract. Since the Supreme Court stated that the contract had been validly entered, it then analysed the right of withdrawal carried out by the defendant. Since article 10(2) of Law 22/2007 on distance selling of financial services to consumers expressly excludes the right of withdrawal of consumers in financial services agreements whose price depends upon fluctuations of financial markets, the Court ruled that the rejection made by the defendant when the written confirmation arrived was not valid and the contract was in force.
Is the written confirmation of a distance contract required for the conclusion of the same? Do consumers have right to withdrawal in SWAP contracts?
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The Supreme Court nullified the appealed ruling and issued a ruling in its place declaring the contract valid and enforceable.