The analysis of clauses, including late-payment interest clauses, contained in adhesion contracts concluded between professionals and consumers, is a matter which attracts the attention of the courts and the media due to the fact that perception of them has changed profoundly during the last few years.
Recent examples, such as the case-law on base clauses or commissions not agreed to in advance, bear witness to this kind of revolution backed by the Court of Justice of the European Union, which obliges Spanish courts to adapt its interpretations and rulings, as far as possible, to that case-law.
The purpose of this article is to offer an initial and superficial picture of the prevailing jurisprudential criterion regarding late-payment interest clauses in personal loans and thus determine their potential abusiveness and, therefore, nullity.
In this regard, under the current dominant case-law in Spain, in order to not be abusive, the late-payment interest established in non-negotiated clauses must consist of an additional percentage that should not be very high, since it is presumed that the absence of security interests indicates that the ordinary interest rate is already high in itself. Thus, the addition of an excessive percentage would lead to an unjustified departure from the percentages that the Spanish legislation establishes for assumptions absent an agreement.
According to the foregoing, it should be noted that the abovementioned case-law determines the abusiveness of late-payment interest clauses based on the ordinary interest rate and allows an increase of two percentage points. Therefore, every late-payment interest clause that exceeds the mentioned limit (late-payment interest plus two points) can be considered null and void for being abusive.
In the context of judicial procedure, it is necessary to take into account that the potential abusiveness of penal clauses can and should be reviewed ex officio by judges and courts and that the declaration of their nullity shall entail that the late-payment interest clause will not be considered included in the personal loan agreement, without any possibility of its moderation by the court.
From the above we can derive, among others, two pieces of practical advice that should be applied by professionals offering personal loans to consumers located in Spain, which involve late-payment interest clauses:
- Review the wording of said late-payment interest clause to verify that it stays within jurisprudentially accepted margins
- In case of introducing a claim against consumer debtors, do not include a claim for late-payment interest (or any other clause that the case-law deems abusive) in order to obtain a substantially favourable ruling allowing an order for costs against a debtor or defendant debtors.
Concluding, it should be noted, that this article provides only an initial and superficial picture of the application of late-payment interest clauses in Spain in personal loans. Therefore, it cannot be considered as advice, insomuch as it is always recommended to seek advice from professionals for the analysis of each specific case.
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