Case law criterion on the counting of the limitation period for an action of mistake in the formation of a banking or investment contract established in the judgments of the Supreme Court rendered on January 12th 2015, July 7th 2015, September 16th 2015 and other case law

Abstract

The motion of lapse of the limitation period of actions brought by customers for mistakes in the formation of a contract is usually filed by banks with different results. The main reason of that uncertainty has been the lack of a clear case law from the Spanish Supreme Court determining how to count the limitation period of four years established in article 1301 of the Spanish Civil Code.

There were contradictory scholars' opinions and case law. On the one hand, some of them suggested that that limitation period should begin with the full performance of the contract, which takes place when all its effects are displayed. On the other hand, it was proposed that the limitation period should begin when the contract is entered into, or at least, with the performance of the main obligations of the contract. This debate seems to be overcome by the recent case law that is analyzed in this article, which states that the limitation period begins when the customer should have become aware of the existence of such mistake in the formation of the contract. In this regard, it is specified that the limitation period starts with the negative results, the absence of profits or interest accrual, the application of management measures on hybrid instruments by the FROB, or generally, with similar events that allow the customer to have a real understanding of the characteristics and risks of the complex investment or bank product.