The Supreme Court tries to develop the serial contracting of floor clauses

Thus, he has assured that the reason is that until now the "literal interpretation of the grammaticality" of the contracts was followed, but that as a consequence of the emergence of "complex" financial products such as floor clauses, preferred shares or 'swaps' during the economic crisis, transparency and abusiveness controls "require" that the contracts include "sufficient keys for the adherent to understand what they are signing", even if there is "informed consent".
During his speech at the meeting 'Current Problems of Consumer Law', held at the Menéndez Pelayo International University (UIMP), in which he focused on the nullity of floor clauses, Orduña highlighted that consumers must « understand the legal and economic position they assume" with the signing of these contracts, an understanding that, he added, "has not occurred in the contracting of the preferred shares."
Orduña has also explained that "the plot" where he is going to build the jurisprudence "is no longer Consumer Law, but rather our Contract Law, in which we have to clearly say why a contract by negotiation is governed by the rules that are governed, which is the Civil Code.
In this regard, he has clarified that the rules of the Civil Code "continue to be virtually effective", but has added the need to explain "why this new form of contracting is no longer governed by these rules and a scope of control of effectiveness, derived ineffectiveness and own and specific interpretation that does not respond to the contract by negotiation.
"Only in this way can the consequences of the phenomenon be fully understood, regardless of whether we can draw conclusions, which we are already drawing," he added.
Therefore, he has specified that the judge's job in lawsuits arising from the contracting of this type of financial products is to "assess whether in practice the keys were present (in the contracts) so that the consumer knows the consequences of what signed, even if its signature has been consented" and there is "neither fraud nor error" on the part of the financial institution.
In this way, he recalled that the Supreme Court established this interpretative basis with the ruling of May 9, 2013, which is "tremendously important" because "it has opened a new front that reigns over a large part of the property trafficking (of citizens), "so we must look for new assemblages and new causal relationships."
"The judge cannot remake the contract"
Likewise, it points out that due to the jurisprudence of the Supreme Court and the Court of Justice of the European Union (CJEU) "the predisposing party (the banking entity), given that it has the immense power to self-regulate and the business configuration itself," "must comply with certain special duties in the field of content (of contracts) and transparency control.
Orduña, who also recalled that even the Bank of Spain has recognized that these financial products "were not suitable" for "mass" marketing, has highlighted that the intervention of the judges "benefits the contractual system itself in its scope." widespread.
However, he has clarified that when a clause is declared ineffective, the judge cannot remake the contract. For this reason, he concluded by stating that "if the contract can or should subsist" despite its ineffectiveness, "the judge must clarify under what conditions it subsists."
Fountain:  The right