The Court of First Instance had resolved, when presented with a request for contractual resolution and refund of deposit, that although a delay was visible it was not essential and therefore, granting contractual cancellation was too harsh a measure. This Judge also found reasonable justification of a delay that a strike took place in December 2005 and January 2006 although only newspaper articles were submitted to back this up.
Furthermore, this judge had deemed that when the claim was filed the delay was of only a few months even though 8 months later, during the course of the trial, it was proved again by our lawyer of choice Mr. De las Heras that the works still remained many months away from completion (in fact, still today it has not been concluded).
The Appeal Court, as usual more sensibly, departed considerably from this understandingand applied a different legal criteria based on the following points.
- That it was clear that the developer Brisamar Cuatro S.L. had defaulted subtantially given that, when the trial took place, build works not only had not been finalized but the delay was then already running into the 24 month period.
- That the developer, although submitted journalistic evidence of a strike, had not proved that this incidence resulted in any delays. Furthermore, even if this delay was accepted as valid, it would have had little impact on a 24 month default in delivery of the unit.
- That in consideration to the above, the Appeal Court finds that the developer hasplain and simply defaulted on the essential obligation, that being delivering a unit
Cajamar, who had resisted paying on the basis that an individual bank guarantee policy was not issued, even if everyone else had it, refused to cover the loss. On a meeting with the branch manager some time ago, I was advised that the policy was actually in safe deposit, somewhere in his office, but that he had no instructions of giving it to the buyers or paying up the loss.
Evidently, such a silly argument carries little weight and therefore Cajamar is now poised to pay up over €100,000, particularly where the Court has now found that their client was in default.
From a legal stand point the ruling has little juridical interest although it does expose the uncertainty any litigant will find himself in when faced with one Judge that sees black where another one (supposedly more experienced) feels it is actually white…!