LA DACIÓN EN PAGO: SUSTITUCIÓN DEL CUMPLIMIENTO ESTRICTO EN UNA RELACIÓN OBLIGATORIA.

Abstract

The hike in the mortgage market's benchmark rates hit borrowers holding loans at variable interest rates hard. Meeting mortgage payments began to take more of an economic effort. Nevertheless, although interest rates have now come down, the high rate of employment has revealed itself as one of the main causes for the increase in defaults. This being the situation, datio in solutum has been proposed as a legal instrument to palliate the effects of foreclosure without in itself terminating the entire outstanding debt. In a setting of serious economic recession, where the value of mortgaged property has become depreciated, the number of foreclosure auctions has risen; and when no successful bidder is forthcoming, more and more frequently borrowers are asking to be allowed to surrender the property in lieu of payment as a means of skirting the application of the rule of unlimited personal liability under article 1911 of the Civil Code. Royal Decree-Law 9/2012 of 9 March on urgent measures for the protection of indigent mortgage loan holders itself takes such a possibility into account. Nevertheless, the measure must be looked at carefully from several perspectives before it is judged the best solution, due to the polyhedral nature of surrender in lieu of payment. It ought to be examined not only from the legal perspective, but also from an economic and social standpoint. Study from a financial point of view, combined with civil, fiscal and mortgage-based analysis, will determine whether surrender in lieu of payment is a good response to mortgage loan defaults.