Analysis of the prescription of the compensatory action

In this article we are going to examine the most recent judgment issued by the Court of First Instance 23 of Palma de Mallorca, of January 12, 2022, number 4/2022, specifically in relation to the prescription of the accessory restitution action derived from the nullity of a “revolving” credit.

Before entering into the examination of the sentence itself, we must not forget that we are dealing with a topic of current burning, the credits «revolving».

So much so that the plenary session of the First Chamber of the Supreme Court, recently, by order of July 22, 2021, has decided to file a preliminary ruling with the Court of Justice of the European Union (CJEU), relative to the beginning of the term of prescription of the action for restitution of the amounts paid by the consumer as a result of a null clause on mortgage expenses (due to the deliberation of the appeal 1799/2020).

In a similar sense, although with the intention of further specifying the question raised by the Supreme Court, we also find the order of the Provincial Court of Barcelona, ​​Section 15, of December 9, 2021.

Therefore, and given the timeliness and incidence of this issue, we consider that the resolution that we are going to comment on is of great interest.

The purpose of the aforementioned judgment is to resolve a lawsuit whose main action is the declaration of invalidation of a card contract “revolving” due to its usurious nature with refund of the excessively collected amounts after the declaration of nullity of the contract and, as a subsidiary action, the declaration of nullity of the contract for abusive default interest.

Once the main action is estimated, the Judgment places special emphasis on the prescription invoked by the defendant, in relation to the prescription of the amounts that would supposedly proceed to be returned beyond the five years immediately prior to the out-of-court claim or filing of the demand.

Thus, this judgment, accepting the Judgment of the Provincial Court of Badajoz of September 3, 2021, Section 3, understands that A different treatment must be given to the main action for declaration of nullity and to the accessory action for restitution.

In this sense, the sentence differentiates between the action of annulment of the business that can be asserted at any time, that is, we are faced with an imprescriptible action, and the accessory action of restitution or action to make the effects disappear, which is subject to a term, for reasons of legal certainty and presumption of abandonment.

The sentence studied here is clear, and accepting both the Judgment of the CJEU of July 16, 2020, which resolves on the prescription of the action to reimburse mortgage loan expenses, and the arguments indicated by the judgment of the Provincial Court of Barcelona dated July 25, 2018, Section 15, this judgment understands that:

In the first place and as a starting point, article 1,930 paragraph 2 must be taken into account, which establishes that all rights and actions of any kind are extinguished by the prescription.

The extinctive prescription has two main foundations, on the one hand, from the objective point of view, the legal security and on the other, from a subjective perspective, the presumption of abandonment or abandonment of a right by its owner.

Therefore, prescription is the rule and covers all actions, except those that the Civil Code itself or other laws expressly declare imprescriptible (such as parentage actions, articles 132 and 133 of the Civil Code).

Secondly, nullity itself, of a declaratory nature, is not subject to a statute of limitations, Like any other act that contravenes the mandatory norm, there is no doubt about the imprescriptibility of the main action of declaration of nullity of a contract “revolving” due to its usurious nature. Although, the question regarding the prescription of the action of removal of the effects after the declaration of nullity is different.

The sentence itself makes a small brushstroke on the different doctrinal positions that currently deal with the issue of the prescription of the accessory restitution action, arriving at the conclusion that, taking into account the majority classical and modern doctrine, it must be affirmed that all the claims for conviction are affected by the prescription of the actions (whatever its nature – article 1939 CC).

Thus, if the invalid act has exhausted all its effects and these are known by the owner, the reasons of legal certainty and presumption of abandonment or tolerance, justify that said action is subject to the limitation period.

Finally, without wishing to go into depth, the sentence refers to the different doctrinal positions on the limitation period and the way to compute it, yes, without doubting in any case about the prescription of the action itself.

In short, the judgment considers, therefore, that amounts older than 5 years before the extrajudicial claim or the filing of the lawsuit should not be reimbursed, according to the new wording of article 1964 of the Civil Code, which, Today, it has already left behind the long statute of limitations of 15 years provided for in the previous wording.

we are before a new judicial resolution that accepts the prescription of the accessory action of restitution or claim of amount as a consequence of the declaration of nullity of a credit «revolving» with more and more judicial bodies accepting this direction, understanding that it is not only the most appropriate legal decision, but also that we are facing one of the most important figures in our legal system, such as prescription, whose security basis Law is one of the basic principles of our Law.