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The Provincial Court of Malaga agrees with Abolex and declares the purchase and sale contracts signed with the real estate developer “Primula Developments” to be terminated.

Judgment on the resolution of the sales contract. Provincial Court of Málaga.



JUDGEMENT NO. 1246 OF 2010









In the city of Malaga on the nineteenth of July of two thousand and thirteen.

Hearing on appeal, before the Sixth Section of this Provincial Court, the trial orders of ordinary procedure no. 1246 of 2010, from the Court of First Instance no. 4 of Marbella, on the resolution of the purchase contract, followed by the application of DON Roberto , DON Apolonia , DON Serafin and DON Carolina represented in the appeal by the Attorney General Don Alberto Sánchez Gil and defended by the Lawyer Don Martín de la Herrán Sabick, against PRIMULA DEVELOPMENTS, S. L, represented in the appeal by the Attorney General Ana Mª Rodríguez Fernández and defended by the Lawyer Don Juan Antonio Ruiz García; pending before this Audience by virtue of the appeal lodged by the defendant against the sentence passed in the aforementioned trial.


FIRST: The Court of First Instance No. 4 in Marbella issued a ruling dated March 25, 2011 in the ordinary trial No. 1246 of 2010, from which this roll is derived, whose operative part reads: “FAILURE The lawsuit filed by the solicitor Mr. Alberto Sánchez Gil, on behalf of Mr. Roberto , Ms. Apolonia , Mr. Serafin and Ms. Carolina , against the commercial company PRÍMULA DEVELOPMENTS SL, with the following pronouncements, has been fully upheld:

First: TO DECLARE that the defendant has failed to deliver the properties to be purchased on the agreed date, the contract dated 13 October 2006 concluded between the defendant and Mr. Roberto, as well as the three purchase contracts dated February 2008 concluded between the defendant and the four co-defendants.

Second: to order the defendant to reimburse to the plaintiff the sum of TWO HUNDRED EIGHTY-TWO THOUSAND THREE HUNDRED FIFTY-NINE EUROS AND FIFTY CENTS (EUR 282,359.50) paid on account of the price, plus statutory interest on that amount from the date on which it was delivered to the defendant.

Thirdly, to order the defendant to pay the costs of the proceedings”( sic)

SECOND – The defendant filed an appeal against the above-mentioned sentence in due time and form, which was admitted and its grounds were challenged to the contrary. The proceedings were sent to this Court, where, since no evidence was proposed and no hearing was deemed necessary, after the Chamber’s deliberation, which took place on June 19, 2013, the proceedings were concluded for sentencing.

THIRD: In the processing of the appeal, the legal requirements have been observed, and the Speaker has been Mr. ANTONIO ALCALA NAVARRO.


FIRST. The appellant requests the revocation of the appealed judgment and the issuance of another one dismissing the lawsuit, alleging that the requirements demanded by the doctrine for the judicial resolution of the contracts are not met, since the cause of the delay in the delivery of the houses is due to force majeure, such as the lack of financing due to the current economic crisis that the country is suffering, The work was temporarily suspended without a known date for its resumption, and the appellant was making arrangements so that in the shortest possible time it could be resumed and the homes handed over.


SECOND. Having raised the debate in the terms expressed above, it seems unquestionable that the reciprocal obligations of the parties arising from a contract of sale are, in accordance with the provisions of Articles 1445, 1461 and 1500 of the Civil Code, the delivery of the thing by the seller and payment of the price by the buyer, leaving the contracting parties in use of the freedom of agreement enshrined in Article 1255 of that body of law, to establish the accessory or complementary obligations that they consider convenient to their interests, or to subject the fulfillment of their main obligations to terms or conditions, requiring for the viability of the resolutory action, according to the reiterated jurisprudential doctrine, in accordance with the provisions of article 1124 of the Civil Code, the concurrence of the following requirements: 1) The existence of a valid contractual relationship between those who concluded it; 2) Reciprocity in the services stipulated therein, as well as their enforceability; 3) That the defendant has seriously failed to comply with its obligations, the assessment of which is left to the free will of the courts; 4) That such a result has occurred as a consequence of the defendant’s conduct which undoubtedly, definitively and irreparably gave rise to it, conduct which was traditionally defined as deliberately rebellious; 5) That these are not obligations which, being incorporated into a contract, are purely accessory or complementary in nature, in relation to the services and considerations which constitute the main object of the contract, and 6) That the shareholder has not failed to comply with the obligations which concern him contractually, unless this occurs as a result of the previous failure to comply with his contracting party, since the latter’s conduct is what motivates his opponent’s right to terminate the contract and releases him from his commitment – TS 1 SS of 21 March 1986 , 29 February 1988, 28 February 1989, 16 April 1991, 4 June 1992, 22 March and 3 June 1993, 21 March 1994, 27 December 1995, 16 May and 30 October 1996, among many others, so that if the contract is terminated, it must be returned to its pre-existing legal status, returning to the previous state, with reimbursement by each contracting party of the things and value of the services they provided by reason of the contract, or what is the same, the effects of the contractual resolution occur “ex tunc” -T. S. 1ª S. of 10 July 1998-, to which we must add that termination can only be requested by those who have fulfilled their contractual obligations -TS 1ª SS. 19 February 1969, 3 June 1970, 5 June 1981, 22 March, 25 June and 22 October 1985, 17 and 31 March, 14 April and 30 June 1986, 3 February 1989, 20 March and 20 December 1993, 10 January and 9 May 1994, 24 November 1995, 24 September 1997 and 6 February and 5 July 1999 -, it being understood that the problem of compliance or non-compliance is of a factual nature – T.S. 1st SS. of 12 June 1986 and 8 November 1997 -, highlighting by recent jurisprudence that the resolution referred to in article 1504 of the Civil Code does not require a fraudulent attitude from the non-compliant party, it being sufficient simply that there be an unequivocal, objective and persistent resistance to compliance, It is sufficient that the non-compliant party may be attributed voluntary conduct that obstructs compliance with the contract in the terms agreed, and it is advisable to terminate the contract when the economic and legal purpose of the purchase and sale business and the legitimate aspirations of the interested party are frustrated – T. S. 1ª SS. of 24 February 1990 and 7 June 1991 -, marking the requirement practiced at the time the resolution is born making ineffective the payment made later by the buyer or any action of the seller, being, however, advisable to maintain the agreement in homage to the contractual will when a decided negative will does not appear defined and unquestionable – T. S. 1st SS. of 7 July 1987, 3 October and 20 December 1989, 24 February and 21 July 1990 and 15 February, 11 March, 7 June and 2 and 16 July 1991 and 2 June 1992, among many others.

THIRD. Thus, based on the above legal considerations, it has been accredited by the documentary that was made during the proceedings, that on October 13, 2006 and February 2008 the litigating parties, Mr. Apolonia Roberto and Mr. Serafin Carolina and Prímula Developments, S. L. entered into four purchase and sale contracts whereby the former bought and the latter sold four homes under construction in the development known as Jardines de Guaro, for a total price of EUR 1,183,418.93, of which they had paid EUR 282,359.60 in various payments. 282,359.60. In the tenth clause of these private contracts, the delivery of the homes was obligatory as soon as the property was completed and a first-occupancy licence was granted, which was expected for the first in October 2009 and for the other three in February 2010, unless, due to any unforeseen circumstances, the sellers would be obliged to defer such delivery, and the buyer would accept such delay from now on. If the delay exceeded the maximum period established, the buyer would be entitled to terminate the contract with a refund of the amounts delivered, increased by 6%, as an exception to the buyer’s right to terminate the contract when the delay was attributed to force majeure, beyond the seller’s control. The buyer paid the amounts, whose return is now demanded, without the seller handing over the keys as it was obliged to do, so on June 29, 2010, four months after the last agreed period, it sent a burofax to the seller, denouncing the expiry of the period agreed in the tenth clause of the contract, and expressing its willingness to terminate the contracts with return of the amounts delivered. It also addresses bureaucracy to the City of Guaro interested certify the state in which they find the works, which is answered on March 4, 2011 in the sense that that date had not yet been completed.

FOURTH. Once the debate has been held in the terms expressed and in view of the chronological account of sufficiently accredited facts in the procedural proceedings referred to this court, it is appropriate to bring up the fact that the First Chamber of the Supreme Court in its sentence of 9 June 1986 maintains that the non-delivery of the acquired property may constitute a mere delay, a situation of default or a failure to comply, and so in the first case, the objective data of the non-delivery of the property on the agreed date has no legal consequences, unless the parties have raised the deadline to the category of essential, while the delay when it is qualified in the performance of the service, constitutes the default of the seller-promoter (Article 1100 of the Civil Code) giving rise to compensation for damages and, Finally, the definitive breach, in the strict sense, is the one that allows the contractual resolution to be carried out under the protection of the rule contained in the aforementioned article 1124 of the Civil Code, which raises the doubt in the case in question as to in which concrete stage of the three expressed we are, since, in principle, It must be understood that the non-delivery of the dwelling within the indicated term must be configured as a case of “default” which, certainly, does not simply mean the termination of the contract, since in order to reach the third of the indicated stages, that of non-compliance, something else is required, which was according to jurisprudential doctrine initially marked by the First Chamber of the Supreme Court that a deliberately rebellious will to comply concurs – T. S. 1ST S. of 9 June 1986 -, but it is the case that at present, as was said in the Second Law Foundation of the present resolution, there is no need for such a requirement, being outlined in the sentences of 5 June 1989, 24 February 1990, 24 February 1993, 23 July 2002 and 11 November 2003, among others, of the High Court, which is not a textual requirement of the legal system, it is enough to prove an obstruction to such compliance, thus refusing the success of the bilaterally agreed business in connection with the interests of the parties and frustrating their legitimate aspirations, From which it could be inferred that in order to determine the borderline between the situation of default and the sanctioning non-compliance with the contractual resolution, it will be necessary to be at the frustration of the end of the contract, so that the delivery of the dwelling by the seller, even if it is done late, if it objectively satisfies the interest of the buyer, If the parties are in arrears, this would give rise to a claim for performance with compensation for damages, while if the limits are exceeded, this breach of contract would give the buyer the opportunity to withdraw from the contract; In other words, as the judgement of 22 May 2003 tells us, when the delay does not cause the frustration of the aim pursued with the conclusion of the contract, as it does not entail the uselessness of the performance for the creditor, this is not an event of termination for non-performance but only of default, jurisprudence having decided to resolve the dilemma of the qualification of the situation of default or of non-performance due to frustration of the business aim for the period of time that has elapsed from the date of the agreed delivery to the filing of the claim by the buyer, In the judgment of 14 November 1998, the breach of contract derived from the course of a year and a half between one date and another, or even fifteen months as envisaged in the judgment of the Barcelona Provincial Court (Section 17) of 28 May 2004, was declared to be a breach of contract, in accordance with the statement made in the twelfth clause of the contract of sale of the dwelling, which was expressly agreed by the parties that Primula Developments, S. L. would be responsible for the payment of the rent. L. undertakes to hand over the properties acquired when the construction is completed, at the latest on the date established for the completion of the construction work, it being of substantial importance that in said stipulation in reference to the property acquired by the plaintiff the term “undertakes to hand over” is used This in itself imposes the express recognition of a contractual obligation assumed by the defendant seller to carry out the consummation of the sale at a certain time and for this purpose it does expressly mark a certain period, which is October 2009 for the first and February 2010 for the others, which imposed that the delivery of the homes had to be done before these dates, deadlines that are openly violated if we stick to uncontroversial facts such as the fact that to date there is no record of the completion of the work and it is left to the goodwill of the promoter the management of the financing for its completion, sufficient to be able to exclude being in the presence of a mere delay or a situation of default and to be able to categorically state to be in the presence of a clear and manifest obligatory infringement on the part of the selling company, without which, in no way, can it be exonerated from the breach by the fact that in the referred stipulation force majeure beyond the control of Primula Developments, S. was agreed as an exception. L. since in interpretation of article 1105 of the Civil Code, the First Chamber of the Supreme Court has certainly declared with reiteration -SS. of 18 November 1980, 2 October 1984 and 2 February 1989, among many others, that apart from the cases expressly mentioned in the law, no one shall be liable for those events which could not have been foreseen, or which, if foreseen, were inevitable, which raises a problem of interpretation, which must be resolved, according to the doctrine, in the sense that being the possibility of foreseeing events a concept that is theoretically very broad and with imprecise limits, it must be understood in its legal and practical application as excluding those totally unusual and extraordinary events that, although not physically impossible, and therefore foreseeable in theory, are not among those who can calculate prudent conduct attentive to the eventualities that the course of life allows to be expected, and as regards the impossibility of avoiding anticipated events, although this does not excuse the necessary diligence to overcome the difficulties that arise, does not, however, require so-called exorbitant performance, i.e. that which would require overcoming difficulties that can be equated to impossibility by requiring absolutely disproportionate sacrifices or violation of higher duties, predictability or unpredictability of the event that has factual quality and Therefore, it is a matter of free judicial assessment, and force majeure differs from a fortuitous case in that, while the first is that which occurs outside the scope of the debtor or the obligatory relationship with insurmountable violence, the second cause for exoneration from liability occurs within the former. It should be noted that, from the evidence provided to the procedural proceedings by the parties, this alleged release from contractual liability cannot be covered in either case, since this is the series of considerations in which the defendant seeks to justify in the appeal the delay suffered in the work being carried out, Apart from being simple requirements of a technical nature, which should have been foreseen by the developer as the periods of expansion and crisis in construction are not unusual but rather predictable and cyclical, so in any case, there would be no impact on the practice for the purposes of resolving the case, given that the margin of non-delivery of the dwelling is greater than that agreed to provoke the resolution in question, considerations which, in short, lead us to agree on the full confirmation of the sentence appealed against in each and every one of its extremes.FIFTH: Article 398.1 of the Law of Civil Procedure states that when all the claims of an appeal are rejected, the costs of the appeal will be imposed on the party that has seen them totally rejected.

Having regard to the above-mentioned precepts and others of legal and appropriate application.


that, rejecting the appeal maintained by the Attorney General Ana María Rodríguez Fernández in the name and on behalf of Prímula Developments, S.L., we must confirm and uphold the sentence handed down on the twenty-fifth of March of two thousand and eleven by the Court of First Instance No. Four of Marbella in Ordinary Trial No. 1246 of 2010, and we impose on the appellant the costs of the appeal.

Please return the original documents with certification of this judgement, against which no ordinary appeal is possible, to the Court from which they emanate for their execution and compliance.

Thus, by this our judgment, definitively judging, we pronounce, order and sign it.



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