Case law

  • Case Details
    • National ID: 118/2004
    • Member State: Spain
    • Common Name:“Finanzia Banco de Crédito, S. A.” v Iván
    • Decision type: Other
    • Decision date: 08/03/2004
    • Court: Audiencia Provincial (Appellate court, Cantabria)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Doorstep Selling Directive, Article 1, 1.
  • Headnote
    It is not sufficient to inform consumers of their right to withdraw from or cancel contracts. They must also be informed that the compulsory formalities of the contract, which must be satisfied by the entrepreneur, are mandatory and failure to comply with them is penalised with the nullity of the contract.
  • Facts
    This case is similar to many others considered by courts throughout Spain due to the problems of bankruptcy and closure of important language teaching companies. In this case, as is becoming customary, a consumer contracted a company (in this case “Home English”) to provide a language course and at the same time arranges a consumer credit agreement with a financing entity to pay for this course. In this case, the court determined that the formality requirements established by Article 3 of Law 26/1991 had been breached.
  • Legal issue
    The appellant (the financing entity), after the court of first instance had declared the nullity of the language teaching contract, challenged the decision by claiming that the infringement of the requirements stipulated in Article 3 of Law 26/1991 on doorstep selling can not have the sanction of nullity, whenever there is evidence that the consumer has been informed about his/her right to withdraw unilaterally from the contract. In response to this argument, the court examined the nature and effects deriving from the formalities envisaged in Law 26/1991 and ruled that whenever dealing with a law specifically designed to protect consumers, such as Law 26/1991, the completion of documentation on the part of the entrepreneur is established as an essential mechanism for protecting consumers’ rights.

    The literal wording of the court’s decision was as follows: “In such cases, these requirements either have a constitutional effect on the contract, whereby this is only deemed to exist with these requirements (constitutive form), a conclusion which is reached by virtue of the very purpose of these procedures (consumer protection), or compliance with these procedures is established as a mandatory requirement, and breach of this requirement is grounds for nullity (Article 6 of the Civil Code), because otherwise the means of protection of the consumer, namely the formalisation of the contract in accordance with specific requirements established in the content and wording of the agreement, ceases to fulfil this purpose”.
  • Decision

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