When a judge declares an abusive loan or mortgage clause, you get back what you paid for. So far, nothing new. What many consumers do not know —And many banks would rather you didn't know— is that such a return must also include the interestand not since you claim, but from the date you made every payment. The Supreme Court has just confirmed this, and in old contracts the difference can be of thousands of euros.
What the Supreme Court has decided
The Judgment 1308 / 2026 of 23 Julyof the Civil Chamber, solves a doubt that had long been generating contradictory resolutions: when an abusive clause is annulled and the bank must return the charges, Since when are the interests of this return calculated?
There were two opposing positions:
- The one that was applied by many banks and some audiences: the interests run from the judicial claimas an interest in delay (article 1108 of the Civil Code).
- The one now consecrated by the Supreme: the interests run from the date of each undue payment (Civil Code, art.
The Supreme is clearly determined by the second. And the reasoning is strong: if only the principal was returned without the interest generated from each payment, the abusive clause would continue to produce effects for the benefit of the bankthat he would have made a profit for years with a money he should never have charged.
Why this changes a lot of money
The key is in the passage of time. In a loan or mortgage signed ten or fifteen years ago, calculate the interest from demand He leaves out most of the life of the contract. Calculate from each fee paid He gets back all those years.
The basis is the principle of full refund: the invalidity must, as far as possible, place the consumer in the economic situation in which he or she would be if the abusive clause had never existed. That includes compensating the loss of value of money over time.
In practice, this requires recalculate many claims: it is not enough to add up to the extra charges, we have to determine when each amount was paid and its legal interest applied.
An important nuance: not all clauses are equal
It should be precise, because there is a relevant technical distinction here. This doctrine is applied in a way direct when the money was paid to the bank itself: remuneration interests, opening commissions or other concepts that the entity claimed and entered.
In fact, the Supreme recalls that, in the case of opening committee declared null and void, the interest refund derives directly from Article 1303 and may be agreed even ex officiowithout a specific request, because the action for annulment is imprescriptible.
The case of mortgage expenditure (notary, registration, management) has its own particularities, because these payments were made to third parties and not the bank, which requires a somewhat different legal construction. In all cases, however, the purpose is the same: to make the consumer free.
Which clauses are often affected
This doctrine can be applied to a wide range of bank claims, including:
- Section remuneration interest abuse (including many cards) revolving).
- Opening committees declared invalid.
- Regulation ground already cancelled.
- Other abusive conditions which have resulted in direct payments to the institution.
What to do if you have (or had) an abusive clause
- Recovers the full historical of your contract: amortization table, receipts and dates of each payment. The «when» is now as important as the «How much?».
- If you already claimed and only the main one was returned (or interest from demand), values whether your case fits into this doctrine to claim the difference.
- Don't assume it's late: the action to declare the clause null and void is imprescriptible.
- It requires the correct calculation: the legal interest from each payment, not from the claim.
Frequently asked questions
Since when does the bank have to pay me interest? According to STS 1308 / 2026, from the date of each payment you made under the abusive clause, not since you filed the claim.
Does this apply to my revolving card or to my ground clause? It can be applied provided that the amounts paid directly to the bank by a clause declared null and void. Each case should be analysed individually.
They already gave me the money back, but without those interests. Can I claim? It may be, depending on how your case was solved. The judgment or agreement should be reviewed to assess whether the difference should be claimed.
Is it too late to claim an old clause? The action to declare an abusive clause null and void is imprescriptible, although the claim for amounts has its own rules. An individual analysis is essential.
This article is informative and does not constitute legal advice. The recoverable amount depends on the specific and historical terms of each contract. In LEYNVER ABOGATES we analyze your loan or mortgage, we recalculate what really corresponds to you —main plus interest from each payment— And we claim in front of the bank. Contact us for a case assessment.
