Un Auto de la Sala de lo Civil del Tribunal Supremo da la razón a los servicios jurídicos de Euriux en asunto de daños de caza
El tema deriva de una sentencia inicial de los juzgados de Quintanar de la Orden, que es revocada por otra posterior de la Audiencia Provincial de Toledo y que ahora, confirma la Sala de lo Civil del TS en un Auto de fecha 10 de enero de 2024.
El asunto es de un gran interés jurídico en un asunto tan específico y concreto como es el de los daños producidos en los terrenos rústicos (sembrados y plantaciones), por culpa de los conejos de zonas acotadas.
La legislación aplicable parte del artículo 1.906 del Código Civil, que habla de que el propietario de una heredad de caza responderá del daño causado en fincas vecinas, cuando no haya hecho lo necesario para impedir su multiplicación. Además, existe legislación específica en materia de caza, como es el artículo 33 de la Ley 1/1970, de 4 de Abril, de Caza y el artículo 8.2 de la Ley 3/2015, de 5 de marzo de Caza de Castilla la Mancha (en este caso, y según concreta el FD 3º del Auto del TS arriba citado).
Pues bien, la relevancia del Auto en cuestión (que tiene la forma jurídica de Auto porque la providencia de puesta de manifiesto de causas de inadmisión se dictó antes de la entrada en vigor del Real Decreto Ley 5/2023, de 28 de junio), estriba en que aquellos terrenos que sufran daños producidos por conejos provenientes de un Coto, DEL QUE FORMEN PARTE ESOS MISMOS TERRENOS QUE HAN SUFRIDO LOS DAÑOS, … no están
acogidos por los preceptos legales arriba citados y, por ende, no pueden pedir, ni obtener, tales indemnizaciones por esos daños de conejos.
El TS confirma con su inadmisión a trámite la línea que marca la A.P. de Toledo, en cuanto que si la finca que ha sufrido los daños, por voluntad propia pretende obtener dos beneficios paralelos (cultivo y aprovechamiento secundario por caza perteneciendo a un Coto), no puede pretender beneficiarse del concepto jurídico de “fincas vecinas”, cuando en realidad es una de ellas, es parte de quien produce el daño, no hay ajeneidad posible.
Con esta resolución recién publicada del TS, se pone fin a una aparente discrepancia de líneas jurisprudenciales aparentemente divergentes y que alegó en su defensa la parte recurrente (SSTS 741/1987, 30.04.1991 y 719/2017) y que, siguiendo los postulados del letrado de Euriux en defensa de la parte recurrida, … ésa descarta dándonos la razón con costas en las tres instancias.
Esta resolución zanja así, insistimos, una duda que está siendo el día a día en cientos de sentencias de tribunales menores que siguen amparando reconocer daños en parcelas integradas en Cotos a los que se demanda y pretende condenar.
Acceso a la Sentencia pulsando aquí
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La Seguridad Social indemniza con 1.800 euros a los afectados por el complemento de maternidad
El Tribunal Supremo ha fijado en 1.800 euros la indemnización a pagar a los hombres que hayan visto denegado el complemento por paternidad en la pensión de jubilación que les reconoció el Tribunal de Justicia de la UE.
La Sala de lo Social del Tribunal Supremo ha determinado, de esta forma, que los hombres que hayan sido objeto de discriminación por parte del INSS al denegarles el complemento de maternidad por aportación demográfica tienen derecho a recibir una indemnización. Esta decisión se basa en la sentencia de un caso de un hombre de León al que el Instituto Nacional de la Seguridad Social (INSS) le denegó dicho complemento, y tiene como objetivo compensar los perjuicios sufridos por los solicitantes afectados.
La resolución judicial ha sido recibida con satisfacción por aquellos afectados, quienes ven reconocida y justificada su situación por el Tribunal Supremo. Sin embargo, es importante señalar que no todos podrán beneficiarse de esta sentencia, ya que solo aquellos hombres que hayan tenido que recurrir a la jurisdicción social para obtener el abono del complemento denegado tendrán derecho a la indemnización. La cantidad establecida para la indemnización es de 1.800 euros, considerada como una reparación completa del perjuicio sufrido.
De este modo, el Pleno del Tribunal Supremo ha afirmado el derecho de los hombres a recibir una indemnización del INSS como consecuencia de la vulneración del derecho fundamental a no ser discriminado, debido a la negación del complemento después de la sentencia del Tribunal de Justicia de la Unión Europea del 12 de diciembre de 2019, caso C-450/18, ECLI:EU:C:2019:1075. Esta negación se consideró discriminatoria por razón de sexo, según la regulación de la LGSS, y constituye una forma autónoma de discriminación vinculada a la actuación denegatoria de la entidad gestora.
Aquellas personas afectadas por este tipo de discriminación tienen la posibilidad de presentar su demanda ante la jurisdicción social para reclamar la indemnización establecida por el Tribunal Supremo
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Car cartel: rulings in favor of the consumer
Most of the rulings that the Commercial Courts have begun to hand down in relation to the so-called 'car cartel' for price fixing are favorable to the injured parties. The wave of complaints is expected to continue to grow Did you buy a vehicle between February 2006 and August 2013? If the answer is yes, you may be entitled to compensation.
A compensation that can range between 5 and 10% of the price they paid. Throughout 2021, the Supreme Court confirmed in 13 judgments the existence of a cartel that grouped virtually all car brands in the State, since they had a market share of over 90%. The issue goes back a long way, since, in 2015, and after a long investigation, the CNMC sanctioned with 171 million euros to twenty-one car brand manufacturing and distribution companies, as well as two consulting companies.
These were the penalties issued by the CNMC, most of which have been ratified by the courts: 1. Automóviles Citroën España: 14.7 million euros. B&M Automóviles España: 776,012 euros 3. BMW Ibérica: 8 million euros 4. Chevrolet Spain: 138,580 euros 5. Chrysler Spain: 265.5 euros 6. Fiat Group Automobiles Spain S.A.: 6.9 million euros 7. Ford Spain: 20.234 million euros 8. General Motors Spain: 22.8 million euros 9. Honda Motor Europe: 609,325 euros 10. Hyundai Motor Spain: 4.4 million euros 11. Nissan Iberia: 3.157 million euros 15. Peugeot Spain: 15.722 million euros 16. Renault Spain: 18.203 million euros 17. Snap-on Business Solutions, S.L.: 52,785 euros 18. Toyota Spain: 8.6 million euros 19. Urban Science Spain: 70,039 euros 20.
What type of vehicles does it involve?
In principle, the complaints are focusing on new vehicles as well as on the so-called zero kilometer and management vehicles. It could be thought that if the cartel operated at the levels mentioned above in the new vehicle market, it would also have affected second-hand vehicles. If a person bought a vehicle during the period in which the cartel was in operation (not all brands were part of it during the whole time), even if he/she later sold it, he/she could also make a claim.
How to claim?
In order to file a claim, it would be necessary to have the invoice or proof of payment showing the amount paid for the vehicle, as well as documentation regarding the technical characteristics of the vehicle.
Possible indemnification
In the first favorable rulings, they range between 10 and 15 percent of the value of the vehicle. Deadlines In June 2022, the Court of Justice of the European Union (CJEU) established that the deadline for claiming compensation is five years to be counted from the corresponding judgments issued during 2021, so that the injured parties could submit their claims until 2026.
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The Toledo headquarters succeeded in having the SC in its civil chamber annul a sentence for "fraudulent scheme".
The Toledo office of Euriux Abogados, through the lawyer Luis Pintado, has managed to resolve a long procedure in favor of its clients in which the civil chamber of the Supreme Court has had to pronounce.
In the review of the sentence, the High Court annulled the previous resolutions due to fraudulent scheme on the part of the opposing party.
"In civil proceedings, when we act as plaintiffs, we have the obligation to try by all possible means to locate the other party for the transfer of proceedings," says Luis Pintado.
In this case it has been demonstrated that the opposing party sought enforcement of a claim for amounts through edicts without providing the correct address despite the family relationship.
"If this is not possible, only then do we resort to means of publication by edicts and the like. Well, this obligation is not susceptible of relaxation and even less of interested orientation looking for a default that leaves the matter half settled in our favor by the non-contradiction of the adversary. In the case that has been resolved by the SC, my clients found out that a civil claim for an amount had been filed against them, without having any notice of it", assures the lawyer who has handled the case.
Luis Pintado points out that in the procedure "in fact, the first conscious notification was the seizure of assets. One of them has been working for years at the Spanish Embassy in Colombia and, evidently, nothing was sent to her there, despite the fact that the plaintiff was aware of this fact". That is why the SC rescinded the sentence and the whole ETJ process.
In the decision, the SC states that "the fact that a civil proceeding can be followed against a defendant who has not been located -therefore declared in default- is something exceptional and that the law only admits in order not to prevent the plaintiff the possibility of obtaining a judicial declaration of his right when the defendant could not really be located by the means provided by law, which in many occasions happens due to his own lack of diligence. It is a matter of weighing the rights of both parties with respect to an effective judicial protection, which is effectively not received by those who are declared in default due to the impossibility of locating them, and is provided to those who - as opposed to the defendant - seek the declaration of a right; a declaration that cannot be denied to them by the mere fact of such impossibility of locating them. As correspondence to the recognition of such right, the plaintiff is required to provide any information that could be useful for the location of the defendant, which constitutes a true procedural burden of unavoidable compliance. In such a way that the non-compliance entails that the fraudulent scheme referred to in the cause of review foreseen in n.º 4 of article 510 LEC is appreciated".
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The Supreme Court rules on disinheritance
The Supreme Court rejects that the lack of relationship is sufficient reason to disinherit a child or grandchild if it cannot be proved that this estrangement has been continuous over time, attributable to the heir and has caused psychological damage to the testator. This is what the high court has established in a ruling in which it upholds a group of granddaughters who appealed against the will of their paternal grandmother, who disinherited them for breaking off all relations with her after the separation of their parents.
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In fact, the woman made a will just five months after the death of one of her children, the plaintiffs' father, including a clause in which she disinherited her two granddaughters "for having mistreated her in deed", denying them the legitimate share of the legacy that corresponded to them in their father's absence. But, perhaps aware that the decision could be reversed, he left in writing that if the disinheritance was not finally made effective, he would bequeath them only what was strictly entitled to them.
The will was contested by the granddaughters, who denied that the lack of relationship with the grandmother could be considered psychological abuse, one of the few causes of disinheritance provided for in the Civil Code, and who stressed that their father, with whom they did not speak either, did not disinherit them. This argument was countered by their uncles and aunts, who argued that their brother died suddenly of a stroke, so he died intestate, and that his daughters did not attend the hospital or the funeral.
Despite these arguments, the granddaughters won all the trials that were held, first in a court in Aranda de Duero and then in the Provincial Court of Burgos. In the latter instance, the magistrates acknowledged that the change in the grandmother's will could have been motivated "by the last lack of affection of the plaintiffs for their father", by not visiting him in hospital. However, they recalled that behind this episode there was a previous history of disagreements and that the grandmother herself, after the separation of the girls' parents, judicially evicted them and their mother from the house in which they were living, located in a campsite belonging to the paternal family.
The Supreme Court, in its ruling, recalls that the grounds for denying a relative's legitimate share are very specific by law, and that if they are appealed, it is up to the rest of the heirs to prove their veracity, as the burden of proof is shifted.
The High Court acknowledges that in other cases it has admitted the lack of a continuous relationship attributable to the heir as psychological mistreatment and, therefore, as a justified reason for disinheritance. But it makes it clear that "not every lack of affective relationship or family treatment can be included, by way of interpretation, in the grounds for disinheritance".
The contrary, he says, would be tantamount to leaving it in the hands of the testator to deny the legitimate share to any direct relative with whom he has lost the relationship, regardless of the causes and the consequences that this situation has on his health.
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Revolving cards: 2 years after the ruling
It has been two years since the Supreme Court's ruling against revolving cards. Two years later, what was predicted to be a major setback for banks is now a reality.
Euriux Abogados, the national network of lawyers in Spain with more than 25 years of experience and 52 offices in Spain, explains the current state of consumer issues.
According to a financial report drawn up by the Bank of Spain and published by Europa Press, the bank WiZink (one of the most affected and the main one singled out in the 2020 ruling) closed the first half of last year with a loss of 25 million euros. This was due to an extraordinary provision of 107.6 million euros made by the company to cover potential payments arising from litigation associated with revolving cards for its customers. Moreover, according to the Bank of Spain itself, of this initial provision, 81.9 million euros, or more than 75%, ended up being allocated to this chapter.
On 4 March 2020, the Supreme Court considered the interest applied to a WiZink revolving card with an initial APR of 26.82% and a subsequent APR of 27.24% to be usurious. This interest was classified by the High Court as "notably higher than the normal interest rate for money and manifestly disproportionate to the circumstances of the case", thus complying with the premises provided in the Law for the Repression of Usury of 1908. A law which, despite its longevity (it is about to turn 114 years old), continues to be fundamental to achieve the nullity of this type of contract.
This controversial form of deferred payment has once again been declared usurious by this highest court, repeating its ruling of five years ago.
The highest court in Spain ruled two years ago that the credit provided by banks to the thousands of people affected by revolving credit should be declared null and void. The resolution is based on the lack of transparency in its marketing and its abusive interest rates, higher than 20% APR, to reach this ruling.
These cards, which allow the deferral of payment for any type of purchase, fell into the hands of a large number of people because of their particularly aggressive marketing. The distinctive feature that differentiates them from normal credit cards is that the customer can choose the repayment terms in exchange for an interest rate fixed in advance in a contract.
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Is your car affected by the Car Cartel?
The consumer organisation OCU has created a simple tool with which any user (it is not necessary to be a member of the OCU) can check in real time whether or not their car is affected(from this link).
You only have to enter three pieces of information: Vehicle Make, Dealer and Date of purchase.
Did you buy your car between 2006 and 2013?
Check if you were a victim of illegal price fixing by manufacturers and dealers. Euriux Abogados is the national specialised network in Spain that helps you recover between 10 and 15% of the value of your car.
Between 2015 and 2016, the CNMC fined 21 manufacturers, 172 dealers and 2 consultancy firms for anti-competitive practices, as they were found to have agreed to fix car prices. This cartel clearly harmed consumers, who paid more for their cars than they should have done. The Supreme Court is confirming these fines, opening the door to claims by users.
What documentation do I need to make a claim?
To start the procedure, it is necessary to present the purchase invoice (or receipt of the bank transfer made to the dealer), the vehicle registration certificate and its technical data sheet. If the vehicle was sold, the claimant must provide the document stating the sale price or final value at which the transaction was concluded.
What is the deadline for filing a complaint?
The deadline for requesting this compensation is one year from the time the Supreme Court rulings are published. Although the sentence to pay those affected is very recent, each sentence was issued at a certain point in time before - sentences began to be published from January 2021 - following appeals lodged by the brands and dealers, so those affected should be aware of when the sentence affecting their vehicle was issued.
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How to claim compensation for the Car Cartel?
According to a Supreme Court ruling, between 2006 and 2013 more than 130 dealers throughout Spain, representing 21 brands, agreed on maximum discounts and commercial conditions in the sale of their cars. A criminal practice, known as the Car Cartel, for which private owners affected by the overpricing in the purchase of their cars will now have to be compensated.
Euriux Abogados, in its national network of 52 offices in Spain, has lawyers specialised in this area to proceed with the claim.
Which car brands are affected?
In principle, the brands eligible to file a claim are: Alfa Romeo, Audi, BMW, Chevrolet, Chrysler, Citroën, Dodge, Fiat, Ford, Honda, Hyundai, Jeep, Kia, Lancia, Mercedes, Mitsubishi, Nissan, Opel, Peugeot, Porsche, Renault, Seat, Skoda, Volkswagen, Toyota and Volvo.
Who can claim the car cartel?
Those who purchased the vehicle between February 2006 and August 2013. The deadline for this claim would be one year from the publication of the Supreme Court ruling. Owners who inherited one of the affected vehicles will also be able to claim this compensation as long as they have all the necessary documentation. Km0 vehicles may not be included in this ruling.
What documents do I need to submit to Euriux?
The documentation that the car owner needs to provide is as follows:
- Invoice of purchase (or bank transfer receipt) made at the time of purchase or reservation of the vehicle at the dealership.
- The vehicle data sheet specifying all the details of the car will also be required.
- If the vehicle was sold, the claimant must provide the document stating the sale price or final value at which the transaction was concluded.
What compensation am I eligible for?
Compensation can be around 10% to 15% of the purchase price of the vehicle, plus interest and minus legal costs. The figure will depend on the date of purchase, make and model of each car. If you paid 30,000 euros for your car, you could receive 3,000 euros.
Supreme Court upholds recordings of workers during their work breaks
A Supreme Court ruling that unifies the doctrines in this regard supports the fact that installed video surveillance systems continue to record while workers take a break during working hours. It justifies this on the grounds that they may "incur in serious and culpable breaches of contract that affect their work obligations".
According to the digital newspaper 'La Información', in the aforementioned high court ruling, the magistrates consider it justified and proportional for companies to make use of the images captured by security cameras to justify the dismissal of an employee who has committed irregular work conduct during his or her rest time.
The debate that the Supreme Court has analysed in its ruling handed down on 13 October relates to whether the employer can use the captured images to justify the termination of an employee's contract for his or her conduct during rest time during working hours.
Specifically, it concerns a public bus driver in Galicia, who was disciplinarily dismissed for several times not charging the fare to a passenger and for smoking several times inside the bus and urinating outside the vehicle during the bus stop.
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Inheritance declared null and void due to error in its acceptance
The Supreme Court has declared the nullity for error of the acceptance of the inheritance following the discovery of a debt owed by the deceased in excess of the inherited assets.
The judgement raises as a legal issue the contestation of the acceptance of the inheritance on the grounds of error following the discovery of an obligation in excess of the inheritance assets.
According to the decision, after the tacit acceptance of the inheritance, a document was issued by the deceased in which, in order to comply with her late husband's will, she acknowledged the right of some nephews-in-law to collect, upon her death, the market value of some properties that she had received from her husband as usufructuary with power of disposal and that, making use of this power, she had sold.
The Supreme Court annuls the judgment of the Provincial Court of Madrid which rejected the claim filed by the heir, and confirms that of the Court of First Instance which upheld the claim.
With the debt acknowledgement document, the existence of which was unknown to the plaintiff, the content of the inheritance was substantially altered, so that, had he known of the debt, for which he was liable with his own assets, he would not have accepted the inheritance.
The Supreme Court describes the error suffered as decisive, essential and, moreover, excusable, as it cannot be considered, in view of the circumstances, that it could have been avoided with normal diligence by the heir.
In the absence of this error determining his tacit acceptance, the claimant would be obliged to pay, beyond the value of the assets of the inheritance and with his own assets, a debt that arose from the voluntary acknowledgement by the deceased who, at the same time as making it effective through the acknowledgement, as it had not been legally enforceable until then, provided that it should be paid with the cash that existed in the estate at her death and, if this was not sufficient, with the amount of the value obtained from the sale of the flat she owned. That is to say, with the inherited assets.
In these circumstances, the Court finds that the error suffered by the plaintiff was such as to invalidate his acceptance of the inheritance.
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