Duty of information in case of “swap”

The TS notes that the duty of information that weighs on the financial entity directly affects the concurrence of the requirement of excusability of the error, because if the client was in need of that information and the financial entity was obliged to provide it in an understandable and adequate way, then The wrong knowledge about the specific risks associated with the complex financial product contracted in what the error consists of is excusable to the client.

Lawsuit filed, in particular, with the bank, for the contractual nullity of the swap quota exchange contract due to an error in the consent and, in turn, a nullity action for breach of the duty of information against the banking entity.

The judgment of first instance dismissed the exception of expiration and estimated the demand, and the second instance estimated the appeal of the bank and declared the action expired, in application of the doctrine contained in STS full 12-1-15.

The Chamber declares with respect to the obligations of information of the financial entities in the financial swap contracts after the incorporation into Spanish Law of the MiFID regulations, in the specific case, that the entity under appeal provided the client with a financial advisory service that forced the strict fulfillment of the duties of information. Its omission does not necessarily imply the existence of the vice error, but it can influence its appreciation, while the information – which must necessarily include guidelines and warnings about the risks associated with financial instruments – is essential for the retail customer You can validly give your consent, well understood that what vitiates consent by mistake is the lack of knowledge of the product and its associated risks, but not, by itself, the breach of the duty of information.

Likewise, the duty of information that weighs on the financial entity directly affects the concurrence of the requirement of excusability of the error, because if the client was in need of that information and the financial entity was obliged to provide it in an understandable and adequate way, then the knowledge Wrong about the specific risks associated with the complex financial product contracted in what the error consists of is excusable to the client.