30 May I WANT TO RESOLVE MY CONTRACT WITH THE CONSTRUCTION COMPANY AS I CAN NOT CONTINUE WITH THE WORK IN MY PLOT. IN ADDITION TO SETTLE THE DUE, DO I HAVE TO PAY A LOT OF COMPENSATION FOR IT IF I SIGNED IT IN THE CONTRACT?
Well, not always. Let’s go for parts
1. First of all, it should be noted that these types of contracts, when they are subscribed between a construction company and a particular person, are within the contracts in which consumers have certain rights protected by law. Thus, in some cases, a clear and well-known example would be the famous soil clauses and other abusive clauses with the banks, the law protects the consumer by making certain pacts can be cancelled and not applicable even when they have been signed by the consumer.
2. Secondly, the way in which the penalty clause in favour of the construction company was introduced in the agreement has to be seen. In order to have access to protection as consumers, the imposition of abusive clauses on adhesion contracts concluded between consumers and professionals does not necessarily entail their wrongfulness, but only of those clauses not individually negotiated, and contrary to the good faith, which cause to the detriment of the consumer and user an important imbalance of the rights and obligations of the parties arising from the contract.
3. Thirdly, what would be understood as excessive or abusive compensation? There are several ways to respond to this. On the one hand the law goes against the establishment in contracts with consumers of limitations that exclude or hinder the right of the consumer and user to terminate these contracts. Is the amount or percentage of the compensation so high that it makes practically unrealizable for the consumer to finish in advance the contractual relationship?. On the other hand, is the imposition by the construction company of this guarantee manifestly disproportionate in relation to the risk assumed by it in the event of an anticipated resolution of the Commission?. You should consider that for the calculation of the trade benefit (utility) that the construction company will have ceased to obtain by the anticipated termination of the work hired it must be checked what has been agreed between the parties (when the clause has been negotiated individually by the parties, of course, and not imposed by the construction company in a non-negotiable manner), or to the calculation according to the commercial margins or elements contained in the contract, and, failing that, to the calculation determined by the judges according to the facts that occurred in each case. In this respect, the jurisprudence has not established a fixed percentage as a criterion of what would be reasonable because it considers that to calculate that percentage it is necessary to consider the economic-social circumstances of the times, as it is a general use, changing and accommodated to each historical-social reality.
4.-Notwithstanding the above paragraph, there is an indicative jurisprudence criterion to get to fix the compensation for utility that is suitable for the contractor and that ascends to the price of the work plus a general percentage of 15% on the same. But this amount is purely indicative and the determination of the compensation, in the absence of a valid pact between the parties, corresponds to the instance judge as a matter of fact that it is.
As we see, the answer to the question should be based on a weighted analysis of the various circumstances that have been exposed, and in most cases will be the criterion of an expert what will be able to help you decide how, and what rights you can enforce against the builder.[:]
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