THE APPLICATION OF THE REBUS SIC STANTIBUS PRINCIPLE IN BANKING CONTRACTS AND ITS INTERPRETATION BY THE JUDGMENT OF THE SUPREME COURT ISSUED ON OCTOBER 29TH, 2013 AND THE JUDGMENTS OF THE AUDIENCIAS PROVINCIALES

Abstract

The so called rebus sic stantibus provision has always had an exceptional application. In order to be applied it is required to have an extreme change of the circumstances which was neither foreseeable nor attributable to the parties. Besides it is required that the referred change provokes a relevant unbalance among the reciprocal obligations. This doctrine was not alleged frequently. But, due to the long and deep economical crisis whose effects started in the year 2008, it has increased the number of actions that pretend its application in different kind of lawsuits, such as the ones related to purchases of real estate or banking contracts. This new situation has caused the idea among courts and scholars that a new flexible approach has to been taken. Thus, in the area of banking contracts a new judgment has been issued by the Supreme Court on October, 29th 2013. According to this judgment and others from the Audiencias Provinciales, it seems that the rebus sic stantibus clause will not be applied in a case where the unbalance is caused by the appearance of a risk which is inherent to the contract and is contemplated in the contractual provisions. But it has to be noted that it may be applied in other banking contract cases. In this vein, in accordance with the last judgments of the Supreme Court, it seems that other features besides the current crisis have to be taken into account, such as the professional character of the party who pretends its application or the purpose of the investment.