Invalidity of the joint and several guarantee (afianzamiento solidario) clause and waiver of the benefits of excusion, order and division when the guarantors qualify as consumers
Published on 27th Sep 2024
The Provincial Court of Cadiz declares the joint and several guarantee (afianzamiento solidario) clause in two leasing agreements, as well as the waiver of the benefits of excusion, order and division of the personal guarantee in relation to the guarantors who are consumers, to be null and void as abusive
The judgment of the Provincial Court of Cadiz (the "PC") 332/2024 of 9 July 2024 dismisses the appeal filed by CaixaBank S.A. against the judgment of the Court of First Instance No. 3 of Chiclana, which declared null and void for abusive the clause regulating the joint and several (solidaria) nature and waiver of the benefits of excusion, order and division of the personal guarantee (fianza) in two financial leasing contracts.
The appellant disputes, among other issues, the consumer status of the guarantors, considering that they do not have it, in addition to maintaining the validity of the personal guarantee clause of both leasing contracts. In relation to this first point, the PC ruled on the consumer status, reaffirming what was decided at first instance, i.e. confirming the consumer status of the guarantors. The PC justifies its ruling on the basis of article 2.b of Directive 93/12/EEC and the General Law on the Defence of Consumers and Users, which establish that a consumer is any natural person who acts for purposes other than his trade, business, craft or profession. In addition, and citing the Supreme Court Judgment of 29 November 2011, it mentions that guarantee (fianza) agreements fall within the scope of application of the aforementioned Directive, and that the guarantor can enjoy its protection, even in the event that the contract from which the secured obligation arises is a commercial transaction, provided that the guarantor is considered to be a consumer.
Given that there is no evidence of any link between the guarantors and the borrower company, nor with the business for which it obtained the financial leases, nor do they hold any position or participation in the company, the PC concludes that the guarantors have the status of consumers in both guarantee agreements.
Based on the fact that the guarantors are consumers, the aforementioned Directive is applicable to them as regards the control of transparency and unfairness in the contracts in question. In this sense, the PC agrees with the assessment of the Court of First Instance in that neither the joint and several (solidaria) liability clause, nor the waiver of the benefits of excusion, order and division pass the control of formal transparency (in terms of incorporation in the contract) given the wording of the guarantee: minimum font size, without standing out in any way, not indicating anything about joint and several liability and loss of benefits on the first page in the box corresponding to the guarantors, appearing only in the general terms and conditions.
Thus, the PC upheld the lower court's ruling, finding the stipulations regulating joint and several liability and the waiver of the aforementioned benefits of the guarantors to be null and void, and considering the clause in question to be non-existent.
