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.

Health Administration Responsibility: The loss of opportunity

When all the diagnostic tools available that could have guided the patient's diagnosis and determined its study and treatment have not been used, and the patient situation reaches an irreversible state, then we face the "loss of opportunity".

The loss of opportunity has been embraced in case law as an alternative to the breach of "lex artis", and  allows for a compensatory response in cases where the latter failure has not occurred, however it exists an unlawful damage arising from the operation of the service.

In this case we cannot ever know what would have been the end result, even if all available diagnostics possibilities had been exhausted .

In these cases, the material damage doesn't correspond to the fact occurred , but to the uncertainty surrounding the sequence that could have taken the facts should the medical service had followed other performance parameters, in short, the possibility that the circumstances concurrent had occurred in a different way.

The loss of opportunity is the loss of an alternative treatment, which resembles somewhat to the moral damage, and that is the concept to compensate.

We can state that medical action deprived the patient of certain expectations of healing, which should be compensated , but reducing the amount of compensation due to the probability that the loss occurred equally, having acted diligently. 

The immigrant child. Passport and the medical evidence of age determination.

The immigrant underage child with passport or equivalent document  cannot be discarded as minor of age and cannot be considered an undocumented alien so as to undergo additional tests to determine his age. A valid justification is required to oblige him to undergo such tests when he has a valid passport.

If in doubt about the document, a judgment of proportionality is to be made, and the reasons why it is considered that the document is not reliable are to be properly analysed prior to deciding to carry out the medical age determination tests.

In the case of both documented and undocumented persons, medical techniques for age determination, especially if they are invasive, may not be applied indiscriminately.

Any doubt about the minority of age based on mere physical appearance of the person shall be resolved in favour of the underage, given the fact that current techniques do not allow to establish with precision the age of an individual and also the existing debate on their accuracy.

According to the European Parliament resolution of 12 September 201 , an unaccompanied minor is primarily a child exposed to a potential hazard.

The protection of children, and not the immigration policies, should be the guiding principle for member States and the European Union in this subject, with respect to the higher interests of the child.

Both public authorities and private institutions should prioritize the interests of the child, which should prevail over any other consideration in all acts adopted in this area, as set out in legislation and case law.

The incongruity of the Court ruling. The omission.

The incongruity of the ruling is the mismatch between the judgment and the terms on which the parties made ​​their claims; granting more or less, or something different than requested.

The judgment must decide the disputes submitted by answering to all the claims made by the parties.

If you give more, less or something different to the request, the court incurs forms of inconsistency known as

·        Incongruity by omission

·        Extra petitum (award more than claimed)

·        Incongruity by error

The incongruity by omission, also known as incongruity “ex silentio” occurs when the court leaves unanswered some of the claims submitted to it by the parties, as long as it cannot be reasonably interpreted that the judgment includes a tacit dismissal of those “unanswered claims”, and the tacit dismissal can be deducted form the reasoning contained in the resolution.

The Fundamental Right to effective judicial protection is the value infringed when the judgment falls into incongruity.

It is not necessary that the judgment includes, an explicit and detailed response to all and each of the arguments adduced by the parties in support of their claim.  It may be omitted the answer to allegations regarded as non-substantial, or nonspecific.

The objective liability of the Administration

The basic element in determining liability of the Administration for damage or injury caused, is the direct causal link, which must also be immediate and exclusive.

 

The claims for compensation are dismissed when the fault of the victim interferes.

The objective liability requires imperatively the causal link between the actions of the Administration and the injurious or harmful outcome. The socialization of the risk (justification of the strict liability of the Administration) does not permit the extension of such liability to cover any event. The current system of strict liability of Public Administration does not convert the Administration into the Universal Insurer for all risks.

The objective liability does not require fault or negligence on the side of the Administration.

The link can be identified looking for the right or efficient cause that usually proves to determine the outcome, looking for an objective adequacy between act and the result. It is necessary to prove the suitability of the link to determine that event or outcome, considering all the circumstances.

There must be an objective match cause/effect between action and event (the plausible link) and then the condition reaches the category of adequate cause, efficient cause or proximate cause reason of the damage. Thus can be excluded both: the indifferent acts, the inadequate acts, and those absolutely extraordinary.

 The breaking of the causal link is reserved for Force Majeure/Act of God, the behaviour of the victim, or the serious neglect of it, provided they have been decisive in the result.