Contract clauses in soil with conditions between companies (self, micro and sme)

Abstract

In Spain the business is comprised 99.2% of self-employed, micro-enterprises and SMEs that have relied, to carry out its business ac- tivities, bank financing up to 80%. Aware that in the recruitment of mortgage loans, conditions, undertakings entered into by default nullity real transparency—more than formal (illegibility, incomprehensibility, ambiguity)— has played unfortunately a leading role, we propose to clarify If, after the jurisprudential doctrine established, in full, by the 1st Chamber of the Supreme in the Judg- ments of May 9, 2013, September 8, 2014 and March 24&25, 2015 (and the STS, delivered by the Board 1st of April 15, 2014), also companies can benefit from this jurisprudence to request to be declared by judicial annulment of the clause ground (1) claiming default transparency (ex art. 5.5. LCGC. We also discuss in which hypotheses will improve (2) the action of nullity of the clause on the grounds of consent (ex art. 1271 CC). A question that will lead us to raise the existing debate today in the lower jurisprudence on determining to whom the burden of proof and clarify what is the competent Court (of First Instance (Civil) or Commercial to hear that complaint. In addition, we will think about controlling abusiveness in contracting between employers in light of European reference texts (CESL, DCFR, PECL and Acquis Principles); which also lead us to reflect on the need to bet on a Second Chance for Consumers (not entrepreneurs individuals) and business (self-employed, micro-enterprises and SMEs) as it exists in Europe.