Post by account_disabled on Mar 3, 2024 22:32:28 GMT -8
In his opinion, “this concept of good faith that our Supreme Court has improvised, according to which the use of an official type safeguards the good faith of the professional, for all cases, would lead us to the multi-currency clause being legal , in all cases. cases, given the official nature of the Japanese yen, its control by the Japanese Central Bank, and its implementation in the international currency market.
In his opinion, " the application of the jurisprudence of the CJEU to the case of Palma de Mallorca should lead the judge to ask whether the professional could understand that the affected consumers, being informed of the operation of the calculation method of the IRPH Cajas type and of the potentially Fax Lists negative economic consequences derived from the use of APR rates. Furthermore, if having been informed of the existence of a Circular from the Bank of Spain that warned financial entities that the simple use of IRPH rates meant placing the APR of the operation above the APR of the market, and that to avoid "This effect made it necessary to use a negative differential, they would have accepted the inclusion of said clause, in those terms, within the framework of free negotiation."
“This is the question whose answer resolves the controversy regarding the good faith of the professional in each case,” he assures.
Erausquin believes that “the answer to that question is that, in the same way that the Supreme Court understands, in its ruling 669/17, that it is not credible that a consumer signs a loan without knowing its essential conditions and, in particular , his remuneration through a variable interest that would be calculated from an official reference index plus a differential, it is also not credible that this same consumer would be so foolish as to, with all this information, choose to refer his contract to the index that year after year turned out to be the most expensive on the market , refer your contract to the index that due to its peculiar calculation method, being determined based on APR rates, would always be the highest on the market, refer your contract to the index that, as the Bank warned of Spain, required a negative differential to prevent its operation from placing its APR above the national average APR, a negative differential that the entity did not plan to apply.”
In his opinion, " the application of the jurisprudence of the CJEU to the case of Palma de Mallorca should lead the judge to ask whether the professional could understand that the affected consumers, being informed of the operation of the calculation method of the IRPH Cajas type and of the potentially Fax Lists negative economic consequences derived from the use of APR rates. Furthermore, if having been informed of the existence of a Circular from the Bank of Spain that warned financial entities that the simple use of IRPH rates meant placing the APR of the operation above the APR of the market, and that to avoid "This effect made it necessary to use a negative differential, they would have accepted the inclusion of said clause, in those terms, within the framework of free negotiation."
“This is the question whose answer resolves the controversy regarding the good faith of the professional in each case,” he assures.
Erausquin believes that “the answer to that question is that, in the same way that the Supreme Court understands, in its ruling 669/17, that it is not credible that a consumer signs a loan without knowing its essential conditions and, in particular , his remuneration through a variable interest that would be calculated from an official reference index plus a differential, it is also not credible that this same consumer would be so foolish as to, with all this information, choose to refer his contract to the index that year after year turned out to be the most expensive on the market , refer your contract to the index that due to its peculiar calculation method, being determined based on APR rates, would always be the highest on the market, refer your contract to the index that, as the Bank warned of Spain, required a negative differential to prevent its operation from placing its APR above the national average APR, a negative differential that the entity did not plan to apply.”