The Santander securities case. Waiting for the Supreme Court after the contradictory doctrine of provincial appellate courts (II)

Abstract

Provincial appellate courts have established a clear contradictory doctrine in the Santander securities case, but within that doctrine there is a certain thread of «minor jurisprudence» holding that there is no vice-of-consent error. The argument is that the records sufficiently show that there was a stylised, pre-drafted subscription request in which the signatory declared that he knew how the investment worked and what risks were involved, and that an informative triptych was supposedly delivered, and there is even reference to a securities note and an issuer registration document that the investor could consult should he wish. In our opinion, this argument falls to the floor when faced with controls over the inclusion and transparency of general contract terms and conditions. The concepts of «unfair terms» and «error caused from without» apply in cases such as this, where the duty of information has not been discharged properly and an information asymmetry situation clearly exists.