6 Months Delay Not Enough to Cancel Property Purchase Contract, Says Judge
Mr. Jorge Montull Urquijo, working from his Marbella Court Two desk, has just produced a surprising ruling in favour of developer Brismar Cuatro SL, responsible for Las Palmeras de Calahonda development, which seemed guilty on at least two “counts”, only to discover that thus was not the case:
- Delay in delivery of the apartment: According to Mr. Montull, and contrary to what was considered enough, a 6 month delay in the delivery of the apartment cannot be considered a serious and grave breach of contract. He supports his opinion on abundant case law from the Supreme Court and determines that “a 6 month delay does not impede the economic objective of the contract and is therefore not a contractual default but a mere delay”.
- Absence of a bank guarantee: In the same manner as above, but less surprising, the judge considers that not giving a bank guarantee is no reason to cancel a contract. He contends that the plaintiffs did not prove the developer put them at risk by not giving them a bank guarantee. Additionally, he argues that the plaintiffs did not make a formal request for the guarantee and concludes that “providing a bank guarantee is not an essential but an accessory obligation and dependant on the principal one, this being the delivery of the property” (he then goes on to support his conclusion with Supreme Court case law).
The above will no doubt make many wonder where do the laws stand in Spain in respect of the consumer and more importantly will give an insight as to how some judges think. It also serves as a reality reminder to some colleagues writing in forums who always seem to find legal loopholes in contracts to convince desperate investors to drag them into Court, of course after a credit card swipe to put them in funds (and thank you very much Mr. Client!).
Always remember that judges are not machines to whom you can apply a formula to obtain a result: after all, law is anything but an exact science in the hands of (imperfect) human beings.