Novatory agreements about floor clauses and waiver of actions according to the latest doctrine of the CJEU and the Supreme Court

Abstract

After the STS of May 9, 2013, many banking entities began to develop renegotiation and novation policies for the floor clauses incorporated into their mortgage loan contracts. These new agreements or contracts are the object of this study; and particularly, the jurisprudential doctrine that on its validity or effectiveness has been developed in recent years, both by the Supreme Court and the Court of Justice of the European Union (CJEU), which once again had to rule as a result of several preliminary questions raised by a Spanish court. The evolution of this doctrine from STS no. 558/2017, of October 16, which was somewhat contradicted shortly after by STS no. 205/2018, of April 11 (which has a private vote), up to the most recent SSTS nos. 580/2020 and 581/2020, of November 5, and no. 589/2020, of November 11, issued after the STJUE of July 9, 2020 (C-452/18) that has set the guidelines for that control and prosecution of the validity and effectiveness of these new "agreements" and the disclaimers in them included.