The crowdfunding platforms in the Law for the Promotion of Business Financing. Approach to crowdfunding regulation in Spain

Abstract

Participative financing platforms (PFPs) are companies that operate in  a network, creating  a digital environment for promoters of business, training or consumption projects  to  request  financing for  them through the  offering  of  loans or securities, in  exchange for granting the  professional investor or consumer who provides financing, a money yield. These platforms constitute a new financial market operator  regulated by Law  5/2015, of April 27, on the promotion of business financing (LFFE).  The crowdfunding regulated  by the LFFE generates  an amalgam of legal relationships, since it is necessary for the investor to access (register on the platform) to be able to operate  through it and  invest in  specific  projects.  The  promoter must submit his  project  to  the  admission and  selection of the  PFP, prior  to  its  publica- tion  on the website, for subsequent direct  contracting with investors. The PFP does not  seem  to hire on  behalf  of its  clients, would not  be agent  or commission agent, but  intermediary in  the  creation   of  a  digital  environment that  allows  the  hiring, but  it does  formalize the  existing contract, and  can  exercise  claim  actions against the  promoter in  name of the  participants in  crowdlending projects  or on  their  own behalf (prior assignment through the sale by the investor of their right to credit).  The PFP can  also detail  contract clauses  of the participative financing contracts offered by the  promoters and  in  this  sense  their  activity would go beyond  mediation. The PFP predisposes the clauses  of the access  contracts for the multiplicity of investors (which are therefore  subject to  General  Conditions of  Contracting). The  PFP also predisposes the clauses  for the contract of an uncertain nature, perhaps  mediation, which is concluded with each  promoter, a contract also subject to CGC. Regarding the participative financing contract, it is an adhesion contract because  the investor has not participated in the elaboration of the subscription offer of securities or in the loan  offer,  which is limited to accepting (there  are no  preliminary deals  that  result in  a last  and  binding offer),  with the  particularity that  in  the crowdlending who formulates the  offer of loan  contract is the  borrower  who  manifests the  conditions in which he wants to assume such position, the lender limiting himself to accepting.