The interest clause in the mortgage loan between individuals: the usury limit

Real rights

Abstract

The mortgage loan contract is probably the safest form of financing for both contracting parties: the mortgagor who owns the property, who has and offers a sufficient guarantee to obtain this financing, and the creditor who has the security of collecting his credit through the realization in value of said property. The lending creditor is mostly a financial or credit institution, but nothing prevents the mortgage creditor from being a non-financial entity, professional or not. The different nature of the mortgage creditor means that the mortgage-backed loan contract has different legal requirements and requirements, since in the case of the non-financial entity creditor, it is not subject to the strict regulations of the Bank of Spain, which allows greater flexibility or autonomy in the clauses that compose it. If the loan is granted by one individual to another, the legal vacuum in terms of the limits that must be established, especially in relation to the remuneration and default interest agreement, is even greater. They can never be usurious, but this concept is indeterminate without being able to be compared with objective indices. In this paper we analyze the peculiarities of said mortgage loan between individuals with special interest in the non-usurious interest clause in light of recent jurisprudence.