Seite - 109 - in Austrian Law Journal, Band 1/2019

ALJ 2019 EU Consumer Contract Law Directives and Ownership 109 party must deal fairly and equitably and must take the other party’s legitimate interests into account. As we have already discussed, the security provider’s (consumer’s) legitimate interest is that the secured creditor and the contract terms provided by the creditor seek to achieve the best price possible in the case the security right must be enforced.91 2. Arguments from Assumptions on Possible Consequences, Value-based Arguments etc As mentioned above, the functionalist aim of identifying relevant arguments also involves dealing with potential consequences the possible solutions may trigger. This endeavour is often based on assumptions (given the future is uncertain and empiric evidence on standard causal relations is usually not available). Lawyers deciding or arguing a case have a high tendency to make assumptions such as this, even though they might do it subconsciously. In a functionalist thought process the ambition is to do it explicitly. We have identified a number of arguments of the kind we assume lawyers to contemplate in a case like Banco Santander. In this section we present them in an order that we hope is easy to follow. (i) We would like to start by pointing out that the CJEU and AG Wahl themselves use such ‘consequence-based arguments’. They point at the fact that it could create problems if other property right holders would run the risk of having their rights contested by an unfair term.92 As mentioned above, this argument does not appear to be very valid when the bank itself has bought the property. The argument could, however, be interpreted as implying that the register should have high formal legitimacy in order to be trusted, since trust and lack of trust are important consequences. Still, this is not a real problem before someone else actually put trust in the register. With a more explicit analysis than what we can read from the CJEU and the AG, this becomes evident. (ii) AG Wahl also forms an argument from the consequences of granting a possibility to challenge clauses in the mortgage agreement insofar as he expresses doubts whether such course of action would really create any benefit for the consumer: If the sale in the extra-judicial enforcement would consequently be ineffective, this would mean that the consumer would still be bound to the credit contract and the entire debt would be due at once.93 This is correct. However, as has been pointed out before, this may still be within the consumer’s interest, depending on how realistic it is for her to raise the money in time, even if there is a risk in the end there will be higher costs to cover, among other factors.94 In this context, one may also say that it is evidently better from a consumer perspective to have a certain right, including the option not to exercise this right, than having no right at all. The option of not asserting one’s right based on a free and informed consent to the term in question also applies in proceedings initiated by an ex officio intervention by the court.95 91 See supra, III.B. 92 See CJEU, Case C-598/15 Banco Santander para. 45; AG Wahl, Opinion on Case C-598/15 Banco Santander paras. 82 f. 93 See AG Wahl, Opinion on Case C-598/15 Banco Santander para. 80. 94 See section III.B. on a consumer’s interests in situations where it is not clear at the outset whether the money can be raised or not. 95 Cf., in this respect, AG Wahl, Opinion on Case C-598/15 Banco Santander para. 80, with reference to CJEU, Case C- 472/11 Banif Plus Bank Zrt v Csaba Csipai, Viktória Csipai ECLI:EU:C:2013:88 para. 35; Joined Cases C-381/14 and