Nullity of a clause rejected because the average consumer knows that being someone’s guarantor means being liable for another in the event of non-payment.
The determining factor for the transparency of a loan guarantee clause is that the guarantor is aware that, if the principal debtor does not pay, he is liable under the same conditions and the creditor may take action against him for the entire outstanding debt.
This has been expressed in a recent ruling by the Supreme Court (SC), putting an end to the claims of a consumer for the clauses of the mortgage loan contract he signed with a bank to be declared null and void.
The amount of the loan exceeded the appraised value of the property to be acquired, so the bank required additional guarantees, specifically, the mortgage on a property belonging to the consumer’s parents.
For the SC, the disputed clause passes the transparency control, because it is clear and understandable. It states that the average consumer knows what it means to be someone’s guarantor, in the sense of having to answer for another in the event of non-payment.
Nor can it be said that there was no proportion between the agreed guarantees and the risk assumed by the bank, as required by the good faith that must govern contracts, taking into account the personal solvency of the consumer, the insufficient value of the property to cover the debt or the decrease in the agreed interest rate, correlated to the greater guarantee represented by the existence of a second mortgage.
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