On November 23, 2017, the Supreme Court issued a judgment establishing that the quality of consumer must be held at the time of entering into the contract. Thus, it confirmed the jurisprudence in this matter, contained in judgments n. 367/2016, of June 3, n. 30/2017, of January 18, n. 41/2017, of January 20, n. 57/2017, of January 30, and n. 587/2017, of November 2, in which is stated that the concept of abuse is limited to contracts with consumers.
In this case, the plaintiff signed a loan contract with a mortgage guarantee with Banco Bilbao Vizcaya Argentaria S.A. (BBVA), which was formalized as a developer loan, because it was stated that the house would be sold once it was built. Subsequently, the plaintiff decided to keep it and use it as his family home, communicating to the bank the change of destination and requesting authorization to use the rest of the credit to the developer – 20% not delivered and pending until the sale of the house-, in which the final owner should be subrogated.
For purposes of the loan for the financing the construction, the Supreme Court understands that a self-developer is a consumer since, although he deals with tasks that are entrusted to professionals, such as the management of the construction of a building, he does not do so in the framework of a business activity, but for the satisfaction of personal needs. However, the question that arises in the case is that the borrower did not obtain the loan as a self-developer, but as a developer, since the purpose at that time was to build to resell.
It is of fundamental importance for the consumer to have, before entering into a contract, information about the contractual conditions and the consequences of such celebration. However, for the purposes of this case, the subsequent decision taken by the plaintiff, of the investment made with the money obtained with the loan, is inconsequential.
The point is that the contract was signed with a business purpose since it was a loan to developer and not to self-developer. Therefore, the protective legislation of consumers does not apply.
