Sistemas de control de la clausula de interes variable en los prestamos hipotecarios

Laburpena

In this doctoral thesis we analyze the aspects related to the different control systems of the variable interest clause in the mortgage loan contracts signed by individuals, that is, the so-called retail mortgage market, with special reference to transactions in which residential real estate properties are mortgaged. The financial crisis of 2008 highlighted a whole set of problems, mainly in relation to operations at variable interest, which undermined confidence in the financial system on essential issues such as transparency, credit information or responsible granting of loans, among others relevant issues. Without any doubt, it is in variable rate loans and, specifically, in the variable interest clause as an essential element of the contract, where the controls analyzed in this thesis should be applied with legal rigour. The reasons for this requirement are basically two: first, the lack of contractual balance to the detriment of the adherent, the weak part of the relationship, and, secondly, in this type of contract it is only the borrower who bears the risk of the interest rate variations. Our work aims to study the different controls, both classic and recently incorporated at the legislative level, applicable to the variable interest clause. As an essential element of the clause, we analyze the reference rates in depth in the thesis, all of them questioned for different reasons. Improvement proposals are made aimed at achieving the necessary representativeness and objectivity of these reference rates. We also try to clarify all those instruments involved in the process of contracting mortgage loans at a variable rate with the objective that the borrower is aware both economically and legally of the obligations assumed in a long term contract.