Lord Woolf said in a recent lecture in Australia: “The real test of the [Human Rights Act] arises when individuals or minorities attract the antagonism of the majority of the public, when the tabloids are in full cry. Then the courts must, without regard to their own interests, make the difficult decisions that ensure that those under attack have the benefit of the rule of law. At the heart of the HRA is the need to respect the dignity of every individual by ensuring that he or she is not subject to discrimination.” A distinct feature that have characterized the political institutions of England, since the Norman conquest is the rule or supremacy of law. One of the three meanings of the “rule of law,” is the equality before the law, the “rule of law” in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals; Every man subject to ordinary law administered by ordinary tribunals. In other words, it means that no man is above the law, and every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. However, in Spain, despite the fact that we have a written Constitution, the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary Courts, has been degraded to its lowest limit.

Moreover,- unlike England,- unfortunately there is in Spain a complete lack of prestigious prominent Jurists, like Lord Wolf or Lord Atkin ( among many others), and the majority “mass media” Spanish judges are usually known only by their immorality and scandals. Therefore, only radical steps would lead to a systemic change in behavior of big corporations in the Real Estate Industry, not taking advantage of their stronger position as well as legal authorities not appreciating the full import of the idea denoted by the term “rule, supremacy, or predominance of law.” This is subsequently a serious public order matter that the Spanish government should tackle immediately, because the complete legal insecurity that a Buyer of an off-plan property still faces in Spain,- mainly as a result of the malfunction of the administration of justice, is seriously damaging the image and reputation of Spain, as far as foreign investors are concerned. The explanation is obvious. Why a private English family should decide to risk investing all their life savings in such a “second class” country, only to be at the mercy of unscrupulous developers, who are accomplices with corrupted authorities that protect their illegal practices and wrongdoings? Due to the lack of jurisprudential uniformity and considering that the current system is totally open to abuse, the Act 57/68 should require a very thorough legislative reform, aimed to incorporate, among others, the new legislation related to the European consumer protection. That would reduce the current uncertainty of having to assess on a case-by-case basis. Specifically, we believe that among others, the following legal recommendations should be clearly incorporated in the new Act: 1) It should be expressly stated that, when buying an off-the –plan property, the completion’s contractual clause must be considered “time is of the essence”. 2) The completion’s date must be specified by means of a clear DATE, but never by using any obscured uncertain date, or subjected to any condition. 3) The banks will be compulsory obliged, to monitor the reception and use of the deposits paid by the buyers, making sure that the funds are used strictly to the constructions of the dwellings. Moreover, the banks will be jointly responsible, (for gross negligence) at the event of the developer, failing to fulfill with its own contractual obligations. 4) In virtue of the doctrine of the “lifting of the veil”, in cases of liquidation or bankruptcy of the building company, the Directors or share holders administrators of the failing company will be jointly responsible, responding with their own personal assets. This measure would prevent the Buyers being left with nothing, no property and no money, like it is unfortunately happening at the moment in a vast number of situations 5) ALL The Courts of first instance as well as the High Courts of Spain will be obliged to apply the current domestic and European Consumer Law. Heavy penalties should be imposed to those Judges who manifestly might show an inappropriate knowledge of the law and its underlying principles. The same criteria will be applied in cases where judges might deliberately ignore the applicable law, interpreting its principles in accordance not with the rule of law, but attending other dubious interests. An finally – although this will be subject of another separate long article,- it will be absolutely necessary an urgent reform of the Spanish legal system, for example similar to the Wolf Reform undertaken in 1998 and subsequent years. In fact, the current situation of the Spanish legal system is absolutely chaotic. As a way of example, at the moment there are a vast number of non qualified Judges who are appointed as “temporary Judges”, (which basically means that they don’t belong to the Judiciary system) who are simultaneously dealing with small claims (less than 3.000 euros) together with very complex cases, like our present case of study, where not only the financial value of the claim is significant but also the inner complexity of the legal issues at stake and the tremendous importance to the public at large. These insufficiently qualified Judges should never be allowed to issue judgments on such complex cases, because not only they lack the necessary high level of expertise and intellectual capacity but also, their appointment is carried out without taking into consideration their personal qualities, such as the need of absolute objectivity, independence of mind, integrity, sound judgment, and impartiality. As the old legal aphorism says: “justice is grievance when the Judge is not wise Sir Thomas More many centuries ago already expressed this idea perfectly well; “ For seeing that both the making and marring of the weal-public doth depend and hung upon the manners of the rulers and magistrates, what officers could they more wisely have chosen than those which cannot be led from honesty by bribes (for to them that shortly after shall depart thence into their own country money should be unprofitable) nor yet be moved either with favour or malice towards any man, as being strangers and unacquainted with the people? The which two vices of affection and avarice, where they take place in judgments, incontinent they break justice, the strongest and surest bond of a commonwealth”. I fully realize a lot of courage and vision is required to undertake the necessary reforms and we suspect that all our recommendations expressed in this document will be simply ignored. But what is really at stake is the prevalence of Justice and the rule of law as the fundamental truly aspirational goals of any democratic society, being these supreme values the last barrier against totalitarianism.

Leave a Reply

You must be logged in to post a comment.