THE REBUS SIC STANTIBUS CLAUSE AND PAYMENT DIFFICULTIES

THE REBUS SIC STANTIBUS CLAUSE AND PAYMENT DIFFICULTIES

The normal thing in people with a "standard" morality is that when they contract a debt they intend to fulfill it. So. Leaving aside the professionals of the sword, when a person buys a car, a house or asks for money for a home renovation, the will is to pay the money that they have been left for their acquisition, be it a bank or another financial institution or the professional who advances his work and materials.

The economic crisis, from which it seems that we are emerging, and I hope that the situation in the place where I have lived, worked and resided for quite some time will not spoil it, has resulted in many people not being able to pay their debts and not because there is a willingness not to pay, but because they really could not.

The reasons are obviously varied, but there is no doubt that the loss of jobs, the decrease in income, the increase in family responsibilities, the deterioration of savings... are among the most frequent.

As an example, a few days ago I had to make a payment request to a man, in which the financial company could pay the debt or return the tractor that had been financed through a lease. The requirements are heavy from a professional point of view, but it also supposes an approach to the reality of people, which has a very didactic human point of view.

This man told me: “I want to pay, but I can't. In addition, the savings we had have been volatilized by the preferential ones that placed my father

This impossibility of fulfilling the assumed obligations is sometimes alleged before the Courts of Justice, using as a legal argument the clause that titles this entry, that is, the so-called "rebus sic stantibus clause

The rebus sic stantibus clause It is a remedy built by legal doctrine, and although it is not expressly recognized in the Civil Code, it could be framed in its article 1105 which establishes as a means of limiting or even exonerating the liability of the debtor, the fact that he has not been able to fulfill his obligations due to the so-called fortuitous event (understood as an event that could not have been foreseen) and force majeure (understood as an assumption that even being foreseeable would have been unavoidable).

The rebus sic stantibus clause It supposes that in any contract, even when it has not been specifically provided for, the parties are only bound as soon as "things continue like this", so that a sudden and extraordinary alteration of circumstances, at the time of compliance with respect to those considered in account in the conclusion of the contract, could lead to a modification of the contract.

In the day-to-day economic reality, the voluntary application of this clause is very frequent, without the need to go to court. As an example, we can cite the enormous numbers of lease contracts that have been modified downwards in recent years, because they had been totally out of the possibilities of the tenants..

The Jurisprudence, having recognized the remedy in which the rebus sic stantibus clause, Due to the risks involved and assuming an exception to the mandatory nature of contracts, it has always made a very restrictive interpretation of it. demanding for its admission as fundamental premises:

a) An extraordinary alteration of the circumstances at the time of fulfilling the contract, in relation to those concurrent at the time of its execution.

b) An exorbitant disproportion beyond all calculation between the benefits of the contracting parties that truly collapse the contract by annihilation of the balance of benefits.

c) That all this occurs due to the occurrence of radically unforeseeable circumstances

The application of rebus sic stantibus clause to the sale of houses.

In recent times, given the serious situation of financial crisis, the alteration of circumstances in an extraordinary way has been invoked, and the possible application of this rebus sic stantibus clause to home sales, although the courts have indicated that the claim cannot be based on the mere fact of the crisis and the consequent financing difficulties, but rather it will require assessing a set of factors that require proof, such as:

a.- The destination of the purchased house as a habitual residence or, on the contrary, as a second residence or for sale, before or after the granting of the public deed, the contractual assignment of the risk of not obtaining financing

b.- the degree of collaboration promised by the seller to obtain financing, distinguishing between contractors who are professionals in the real estate sector and those who are not,

c.- the economic situation of the buyer at the time of the perfection of the contract and at the time of having to pay the pending part of the price that he expected to be able to finance,

d.- The real degree of impossibility of financing and its specific causes added to the general economic crisis, also having to assess, where appropriate, the conditions imposed by credit institutions to obtain financing, or finally the possibilities of negotiation of the payment conditions with the seller and therefore to maintain the contract as a preferable alternative to its ineffectiveness.

The application of rebus sic stantibus clause to loan or credit agreements.

Likewise, the jurisprudence has indicated, as a general rule, that difficulties for payment cannot be identified with the intervention of an unforeseeable external cause, and thus the judgment of the Provincial Court of Madrid of December 18, 2014 tells us that the concept force majeure, included in article 1.105 of the Civil Code, is modernly understood in the most general field of Law (UNIDROIT Principles, art. 7.1.7) as an impediment beyond its control and that, at the time the contract was entered into, could not reasonably have been expected, taken into account, or its consequences avoided or exceeded.

The good, better or worse possible performance of the personal economy is a reality that must be in the mind of every person who embarks on a credit operation, but the advent of payment difficulties cannot be identified with the intervention of a cause external, not foreseeable, or that being foreseeable was inevitable.

In Lleida on the twenty-fourth of October two thousand and seventeen.

 

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