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José M.
José M., Attorney
Category: General
Satisfied Customers: 4768
Experience:  Spanish Attorney
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I have a question for Law Denning relating to unjust disenrichment

Resolved Question:

I have a question for Law Denning relating to unjust disenrichment and the defence of change of position. As briefly as I can:

I bought a professional recording system consisting of hardware and software plus a license to use. This was upgraded at various stages by me over a period of ten years. Then, the last upgrade stage was paid for by my business partner.

Two years later we fell out and now she wants her upgrade of the system back plus restitution for work done by me on that system since the dispute started. She is therefore claiming restitution on the basis of unjust enrichment. My belief is that the upgrade was a gift but that may not be provable, so I wish to apply the defence of 'change of position' by the fact that I have not been able to do any work on that computer system precisely because of the threat of a claim for restitution. As a result I have had to transfer my work to a smaller and less powerful system to do limited work. I therefore cannot continue to earn the income I would have made if I had been able to continue on the original system.

I cannot also go back to the previous upgrade that predated the system purchased by my business partner because hardware that I had paid for had to be returned to the manufacturer in order to receive the new upgrade (they do not permit upgrades without destruction of the previous system in order to prevent second-hand selling). Therefore there is irreversibility involved.

So can I argue that I have suffered unjust disenrichment and, at the same time dispute that the unjust enrichment is claimable by the claimant? Can one be applied if the other does not exist? If I dispute the unjust enrichment and lose that aspect, can I then put forward the defence of change of position and unjust disenrichment?
Submitted: 10 months ago.
Category: Spain Law
Expert:  José M. replied 10 months ago.

José M. :

Hi Sir, José Magadán, spanish attorney

José M. :

Your question its really very hard to answer as you know

José M. :

First you talk about you bought, and in one of the steps you probably need cash and you take a cash partnert in your business...

José M. :

We need to know what kind of agrement you signed then and the obligations and rights were included in that contracted agreement

José M. :

Let me know about the signed contracts and I will tell you my opinion about your case

José M. :

Thank you

Customer:

Jose, the question was addressed to an English lawyer called Law Denning. Sorry, I do not know how it got onto the Spanish Law site.

José M. :

Where do you want to put it?

José M. :

I could ask moderators to change it

Customer:

I have checked Jose and it was posted in UK Law ... but for some reason it was also posted in Spain Law. Any way, I am waiting for an answer from UK Law. But thank you for your help.

José M. :

Thank you

Customer:

I could ask you another question in anticipation of losing the case in the UK courts if that is okay?

Customer:

I live in Spain. If I lose the UK trial the judge is likely to award around £70,000 in costs to the claimant. I will then be made bankrupt. But that will have to be in Spain where I live and where I work. They will try to possess my house but it is under a private mortgage to my wife's sister. So can the bankruptcy agent seize a house of the bankrupt for selling it in auction if there is an existing mortgage and the mortgagee does not want the house to be sold?

José M. :

Well

José M. :

Its possible but very hard to manage it in Spain because first he should need to get the validity of the Uk sentence in Spain

José M. :

Once she got it he sould need to execut it

Customer:

That surely will be through the Brussels Regulation and will be enforceable?

José M. :

I dont think so

José M. :

In all cases, the propiety is on your name?

José M. :

He will need to get the validity of the sentence in Spain, and once he got it to ask an spanish court to make it enforced

Customer:

As I understand it, the order of charge on the property is in the order of (a) the mortgager, then (b) my wife who owns 50% and only then (c) the claimant from the UK? So can the third in the list force a sale. The house is jointly owned by me and my wife, with a mortgage of 120.000 Euros from my wife's sister.

José M. :

So, I see time and riskes... you could now to sell out the hause and take out your name of it

José M. :

I dont think that anybody take the legal procedure to execute the half of a propiety with a mortage

José M. :

Expenses, time, and a hight risk to lose all you put in the procedure...

José M. :

I do not see riskes for you

Customer:

That is not legal if it is to avoid a bankruptcy charge. It has to be done at least two years before the bankruptcy otherwise it is avoidance. But we have the private mortgage and the mortgager does not wish for the house to be sold as she prefers to receive the mortgage payments and not her loan repaid. That is the legal position I am arguing.

José M. :

Its not ilegal if you make it before you have the obligation to pay

José M. :

And you do not have to pay now...

José M. :

In Spain you could sell out without problems...

Customer:

But Jose, the costs of selling my half (with all the taxes and charges) is high because of the valuation at the catastral. So the tax will be more than 10.000 Euros which I do not have. That is why we went for the private mortgage which was for a 120.000 share of the property. Then the charges were 3.000 Euros only. This has been done and the mortgage is in place. So are you confident that if the bankruptcy is enforced in Spain (through EC law) that the bankruptcy agent will not be permitted to sell the house to recover the bankruptcy charge?

José M. :

Well, the other half its of your wife... you could make a division de cosa comun, as it is call in spain

José M. :

It does Not pay personal taxes and transmision tax its not 6 per cent, its 1 per cent

José M. :

It does mean that you put the propiety in her own name only and the creditor never could go againts her

Customer:

The house was built for 600.000 Euros and is currently only worth 300.000 because of the crisis. So we do not want to sell now because of the loss. we need to wait for the market to improve ... and we do not want to leave Spain!

José M. :

You do not have to sell... you just need to put on your wife names. If the creditor could do anything against her its an easy answer

José M. :

Ask in the notaria about the cost of making a division de la cosa comun

José M. :

Taxes are just 1 per cent of the catastral value

José M. :

Ad the cost of propiet regiuster and notario and thats will be all

Customer:

That is interesting. So a division cosa comun enables me to sell my half at the current valuation which equals 50% of €300.000. So 1% of €150.000 would only be €1.500 to pay in tax, plus lawyer's fees? Is that everything?

José M. :

That it is, but its not 300.000, the value will be provided for the consejeria de hacienda, tax oficce, of the province you are

José M. :

May be little higher but the tax its 1 per cent

José M. :

I must leave my office now

José M. :

We could continue in one hour time

José M. :

Please do not forget to rate my answers and I will be glad to help you in your case

José M. :

Thank you

Customer:

Okay Jose, thank you. I will look into it. I will finish now and rate your response. Again, thank you.

José M. :

Thank you

José M. :

I am ussually on line in this site

José M. :

So I am easy to reach

José M., Attorney
Category: Spain Law
Satisfied Customers: 4768
Experience: Spanish Attorney
José M. and other Spain Law Specialists are ready to help you

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