España

Sentence of Section 3 of the Provincial High Court of Las Palmas de Gran Canaria, 26/6/1997

A married couple had let out property. It was agreed that rent would be paid by bank transfer from the tenants' account to that of the owners, both accounts being in the same banking entity. At a given moment the tenants wrote to the bank instructing the bank to suspend the transfer, which took place every 15th of the month

Despite the order of cancellation of the transfer, transfer went ahead as in the previous months with 150,000 pesetas being paid into the owners' account, which they used, with the rent contract still being in force. The bank, later and without due notice cancelled the 150,000 pesetas from the owners ' account with which the account went into overdraft
Comisión EuropeaEscuela Europea de ConsumidoresGobierno de CantabriaMAG (Estudios de Consumo) S.L.IFAVConsomation et Logement Cadre de VieAssociation d'avocats

 

Some cases about over-indebtedness.

  

It is precisely this overdraft as well as interests for delay on payment that are the object of the present litigation

The court confirms that the rent contract was still in force, in the moment that the bank was to cancel the transfer, for which the owners were within their rights to receive the corresponding rent payment. The overdraft, as the court understands, is due to the bank's negligence. It finds it inexplicable, that six days after the cancellation order, despite all the advances in information technology, the cancellation order was not carried out

The court finds that the bank proceeded contrary to good faith. The bank took advantage of the overdraft, provoked by the bank itself, charged interests calculated in an abusive manner and unilaterally, thus contravening the General Law on Consumer and User Protection, specifically article 10 1 c), in which it affirms that contractual clauses in standard contracts should respect good faith and fair balance between the rights and obligations of all parties, excluding therewith the possibility of using clauses of an abusive nature

The court accepts the argument brought by the married couple - who were sentenced to pay the overdraft and interests by the court of first instance - and that, absolved the married couple, wiping clean their "phantom" debt with the bank