LA CLÁUSULA REBUS SIC STANTIBUS EN LA CONTRATACIÓN INMOBILIARIA. SU POSIBLE APLICACIÓN A LOS SUPUESTOS DE COMPRAVENTA DE VIVIENDAS AFECTADAS POR LA CRISIS ECONÓMICA A PROPÓSITO DE LA SENTENCIA DEL TS DE 17 DE ENERO DE 2013.

Abstract

Clausula rebus sic stantibus attempts to solve problems stemming from a supervening change in the circumstances that applied when a contract was concluded, causing a change so drastic that it either increases the burden in an extraordinary fashion or frustrates the contract's very purpose. We take a close look, showing that case law's position on the application of clausula rebus sic stantibus has always been very restrictive. We also study the interesting Supreme Court ruling of 17 January 2013, whose most novel aspect is that it accepts the application of clausula rebus sic stantibus in certain cases where the economic crisis has made it impossible for real estate buyers to obtain financing, provided that certain circumstances are present that give rise to an extraordinary change in the circumstances, making for a severe upset of the proportionality of the parties' obligations. The ruling obliterates any hint of legal uncertainty by making it clear that any court considering the application of clausula rebus sic stantibus to purchases of homes affected by the crisis and ensuing financing difficulties would have to weigh a set of factors requiring proof (listed in the ruling, although not exhaustively or appraisingly), which would make it possible to apply clausula rebus sic stantibus in this context. The restrictive criterion that the Supreme Court once hewed to regarding the application of clausula rebus sic stantibus gave way in this ruling and in the ruling of 26 April 2003 to a stance that looks more favourably on an open interpretation, taking account of the circumstances of each particular case, which the author considers wise.