Abusive clause: Nullity by imbalance

The existence of a  imbalance that hurts the consumers is the key to the abusive condition of the non negotiated terms included in the general conditions of the contracts.

The abusive general condition of a contracts is null where the contract is concluded with a consumer.

The requirements to consider abusive the general condition are:

a) That it is a pre established general condition and it is intended to be imposed in several contracts without being negotiated individually.

b) That it causes a significant imbalance in the rights and obligations in breach of the good faith.

c ) That the imbalance harms the consumer .

The circumstances to consider are those of the date on which the contract was signed , including the expected development of the circumstances whether these were taken into account or should have been taken into account. It is to be considered the information available to a diligent businessman, at least in the short medium term.

The analysis must consider the remaining provisions thereof.

The fact that a clause is clear and understandable does not mean that it is balanced or that it benefits the consumer .

The lack of transparency does not necessarily mean that the clause is unbalanced and that the imbalance is a significant prejudice to the consumer.

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Case History Medical Error: Breast Cancer.

In May 2008 a tumour-like lesion of about 1 cm is diagnosed.

Between May and August the patient undergoes review of General Surgery, Ultrasound with benign characteristics, scarce material is obtained (the sample is not diagnosed) , Thick Needle Biopsy is requested ( BAG), normal NMR and no pathological solid image .

So far the performance is in accordance with protocols.

In 2009 in the review and ultrasound test the size evolution is:

                            2008 June : 7 x 4 mm

                            2008 July : 9 mm

                            2009 May : 1.79 cm x 0.65 cm

There is a clear increase in nodule size and a biopsy should be recommended, but the report says that "does not show significant changes from previous ultrasound and no biopsy with thick needle is made".

The report of the ultrasound test does not register significant changes in size of the node.

The latter two actions mean a delay in the biopsy prescription of 16 months.

In August 2010 the biopsy is prescribed. The patient delays the intervention due to her holidays considering the benign characteristics and the long evolution.

In January 2011, following the complaint of the patient for the delay, the nodule is removed and diagnosed as infiltrating ductal carcinoma.

The relative probability of survival after 5 years of the patient has decreased from 88-100 %in May 2009 to 76-86 % in February 2011.

CONCLUSIONS

There was a medical error.

It is unknown whether the nodule was a primary tumour in May 2009 and then underwent a subsequent malignant transformation.

Should the biopsy had been prescribed in May 2009, it could have been possible an early diagnosis and an increased life expectancy.

The defendants admitted the existence of malpractice by, and the question left was to value the damages. 

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"Tax Planning" and "Tax Fraud"

"Tax Planning" and "Tax Fraud" have in common that both prevent, totally or partially, the payment of taxes, whose taxable event is not done or occurs in a less burdensome manner. This is achieved by choosing different paths to those ordinary or expected .

The Tax Planning option is lawfully chosen between various legal alternatives, one effect of which is to obtain a tax advantage.

In the Tax Fraud actually, and despite the outward appearance, the choice is not materially lawful, as it is achieved by using improper means, for the sole purpose of obtaining that Tax advantage.

The Tax Office has to calculate the tax due in accordance to the legal nature of the real fact, as defined by law, with no regard to the appearance or name the parties may have given to it. However the Tax Office cannot as a result of fraud of law invoice the proper taxes without the prior express declaration of the existence of such fraud of law.

The declaration of the existence of fraud of law with tax implications requires an specific procedure in which the corresponding proof is furnished to the interested parties.