A borrower can be legally treated as a consumer, with all the guarantees associated with this condition, even when a fraction of the loan has been directed to their professional activity. This is established by a recent ruling from the Supreme Court, which adopts the criterion of the Court of Justice of the European Union regarding the notion of consumer in dual-purpose credit contracts.
The ruling, issued at the beginning of the month, specifies that, to decide whether a borrower holds the status of consumer or not, it must be analyzed whether the professional objective of the credit clearly prevails over that intended for consumption, or if, on the contrary, it does not have a predominant weight.
The case examined by the High Court refers to a couple who signed in 1998 a mortgage loan of 33 million pesetas, subsequently increased by another 10 million, with the intention of applying it to their professional activity. Years later, in 2010, they signed a new contract in order to refinance the previous operation.
The borrowers filed a lawsuit against the financial entity (Bankia, currently CaixaBank) requesting the annulment of the floor clauses included in all contracts. Although the court of first instance upheld their claims, the Provincial Court revoked the ruling by adopting a previous criterion, according to which a borrower was only considered a consumer when the part of the credit linked to the professional activity was "insignificant."
"This new doctrine eliminates a barrier that excluded many individuals from legal protection simply for having used a part of their mortgage to finance their professional activity. The status of consumer does not automatically disappear by being self-employed or a businessman," stated the managing partner of Navas & Cusí, Juan Ignacio Navas.
According to this firm, the doctrine established by the Supreme Court opens the way to legally challenge floor clauses, mortgage formalization costs, late payment interests, and other stipulations that may be considered abusive in this type of contracts.
In its ruling, the Supreme Court recalls, in matters of transparency and abusiveness, that "it is not only necessary for the clauses to be drafted in a clear and understandable manner, but also for the adherent to have a real understanding of them, so that an informed consumer can foresee, based on precise and understandable criteria, the legal and economic burden of the contract."
Likewise, the High Court emphasizes that, although it is possible for a clause not to be classified as abusive despite not passing the transparency control, this exception does not apply to floor clauses. The reason is that "its lack of transparency causes a substantial imbalance to the detriment of the consumer."