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ALJ 2019 Wolfgang Faber/Claes Martinson 102
(again, type (b)), therefore reopening the issue of unfair terms would undermine legal certainty by
contesting a ‘right in rem’ involving potential effects on third parties. This way of reasoning certainly
is open to various kinds of criticism, and some potential aspects have already been mentioned in
brackets above. The point we would like to make in this article, however, is that certain concepts –
types of proceedings and types of rights – stand in between the problem and its solution, and it is
rather the use of these concepts that decides the case than an analysis of the interests of the
parties involved. It is almost neglected that there are still only two parties involved.67
(iii) Furthermore, both the AG and the Court point out that, according to their view, there are no
indications that any terms of the mortgage contract could actually be ‘unfair’ within the meaning
of the Directive.68 This is quite remarkable, for several reasons. The question of whether a
particular contract term is actually unfair or not is not an issue for the CJEU to decide in the
procedure at hand. Another reason is that the CJEU could arguably assume that the Spanish court
actually had reasons for reviewing the potential unfairness of the contract. It should also be taken
into account that in other European jurisdictions, already granting authority to the creditor (bank)
to represent the debtor in private enforcement proceedings before the debt is due, is presumed
to be void on account of circumventing the prohibition of the so-called lex commissoria.69
Moreover, a contract concluded by way of self-contracting – as the sale of the apartment in the
present case where the bank both acted as the buyer and as the representative of the seller –
would be considered void or voidable under many European legal systems.70 Spanish law may,
however, be somewhat peculiar with regard to some of these aspects: According to Article 234 of
the Mortgage Regulation,71 the mortgage agreement must, in order for the specific extra-judicial
enforcement procedure used in the present case to be available, fix the value of the immovable
property used as the auction value and determine the person who will sign the sales contract as
the representative of the mortgagor, and that the creditor itself may be nominated for this
purpose. Hence, contract terms just reflecting these statutory provisions will not fall within the
scope of the UCTD due to its Article 1(2). However, there still could be other unfair terms in the
67 This is in fact observed both by the Court (CJEU, Case C-598/15 Banco Santander para. 45) and AG Wahl (Opinion
on Case C-598/15 Banco Santander para. 83), but not considered relevant because it could also have happened
that a third party had acquired ownership of the apartment.
68 See AG Wahl, Opinion on Case C-598/15 Banco Santander para. 71; CJEU, Case C-598/15 Banco Santander para.
48.
69 This view has been expressed, with regard to Austrian law, by OGH 5 Ob 295/01w
ECLI:AT:OGH0002:2002:0050OB00295.01W.0115.000. Also, a clause granting the creditor discretion in
determining the price for selling off collateral assets, or a term allowing to sell for a minimum price that is not the
market value or at least the value to be achieved in a judicial enforcement procedure are considered void in that
judgement. For a summary of related Austrian case law, see Wolfgang Faber, §§ 1371, 1372 ABGB, in ABGB
PRAXISKOMMENTAR, BAND 6, at n. 9 (Michael Schwimann and Georg Kodek eds., 4th ed., 2016). – Rules prohibiting a
so-called lex commissoria have spread from Roman law (see Codex Theodosianus 3, 2, 1) and are, with certain
differences as to details, still very common in European jurisdictions; see, for instance: § 1229 BGB (Germany); § 37
Lag (1915:218) and § 37 Act 1929/228 (Sweden and Finland, respectively). Also French law originally contained a
prohibition of pacte commissoire clauses (Article 2078 Cc, old version) but changed to a much more liberal
approach in 2006 (Article 2348 Cc, present version).
70 See Article II.–6:109 DCFR and the national notes to this provision in PRINCIPLES, DEFINITION AND MODEL RULES OF
EUROPEAN PRIVATE LAW – DRAFT COMMON FRAME OF REFERENCE (DCFR), FULL EDITION, VOLUME I 437–442 (Christian von Bar
and Eric Clive eds., 2009). To what extent involving a public notary in the enforcement procedure (as has been the
case under the respective Spanish rules in the Banco Santander case) may make a decisive difference can hardly
be assessed without knowing the procedure in detail.
71 As quoted in CJEU, Case C-598/15 Banco Santander para. 14.
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book Austrian Law Journal, Volume 1/2019"
Austrian Law Journal
Volume 1/2019
- Title
- Austrian Law Journal
- Volume
- 1/2019
- Author
- Karl-Franzens-Universität Graz
- Editor
- Brigitta Lurger
- Elisabeth Staudegger
- Stefan Storr
- Location
- Graz
- Date
- 2019
- Language
- German
- License
- CC BY 4.0
- Size
- 19.1 x 27.5 cm
- Pages
- 126
- Keywords
- Recht, Gesetz, Rechtswissenschaft, Jurisprudenz
- Categories
- Zeitschriften Austrian Law Journal