Contest of creditors and refund of anticipated amounts

The TS determines the origin of the return of the amounts advanced by the buyers of a home, regardless of whether the home originally acquired by another was replaced, being irrelevant that the guarantor does not issue a new certification, as the fact that gives rise to the enforceability of the guarantee is that the construction does not start or does not come to a good end, since the guarantor does not guarantee the fulfillment of the delivery obligation but the restitution of the amounts that the promoter has to restitute when the purchaser resolves the contract for breach of that; It is irrelevant that the amounts are not deposited in a special account because the buyer can not be imposed the obligation to deposit the amounts in a special account, and the income in a regular account does not exclude the guarantee of the guarantor.

The buyers of a home had agreed to change the initially acquired one with another of similar characteristics and price, signing a resolution of the purchase agreement of the first home and a purchase agreement of the second, agreeing that the amount delivered by the the first contract was transferred on account of the price of the second, the promoter assuring that it was not necessary to return the guarantee and replace it with another referred to the new home. Finally, the home was not delivered on time and the promoter was declared bankrupt.

A claim is filed by the buyers of a home against the guarantor, requesting payment of the anticipated amounts given to the developer for the purchase of the home.

The Court of First Instance and the Provincial Court dismiss the claim. The Court bases its decision on the fact that the delivery of the guarantee guaranteeing the anticipated amounts on account of the second home was resolved by mutual agreement and was not motivated by a previous breach by the seller, therefore, the guarantee was also extinguished.

Once a cassation appeal has been filed, the Supreme Court considers that the defendant guaranteed the amounts advanced by the buyers, regardless of whether the home initially acquired was replaced by another of the same promotion.

The factual assumption that gives rise to the enforceability of the guarantee is that the construction does not start or does not come to a good end. The guarantor does not guarantee the fulfillment of the delivery obligation but the restitution of the amounts that the promoter must pay back when the purchaser resolves the contract. In spite of the change of housing, the anticipated amounts continue guaranteed, being irrelevant that the guarantor did not issue a new certification when the change of housing took place.

The termination of the contract was motivated by a previous breach by the promoter, who did not deliver the home within the agreed term. In addition, it is reiterated doctrine, that the obligation to deposit the amounts in a special account can not be imposed on the buyer and that the entry in an ordinary account does not exclude the guarantee of the guarantor.

STS Room 1st of March 14, 2019. EDJ 2019/523788