TRANSPARENCY SCRUTINY OF THE FLOOR CLAUSES ESTABLISHED BY THE JUDGMENTS OF THE SUPREME COURT RENDERED ON MAY 9TH 2013, SEPTEMBER 8TH 2014, MARCH 25TH 2015 AND APRIL 29TH 2015

Abstract

Floor clauses of mortgage loans have provoked an increasing number of lawsuits last years due to its application as a consequence of the relevant lowering of the indexes that are used for calculating the floating interest rate. The outcome of these disputes was varied among the Provincial Courts, till the emergence of an established case law from the Spanish Supreme Court. This case law has created a double transparency test and a voidness which does not have retroactive effects. According to the said transparency test, the majority of floor clauses which are consent by consumers and meet some requirements (which were frequently present in this kind of contracts) are void. Consequently, they do not have any effect. But the said nullity does not create a mutual restitution of the obligations performed as a consequence of the referred clause from the contract was entered into by the parties, but from the moment that the judgment of the Spanish Supreme Court dated on May 9th 2013 was published.