Law firm guidesBanking and finance

They sold you a complex product as if it were a deposit

Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826

The short answer

You bring the action to void the contract for mistaken consent, which under article 1301 of the Civil Code lapses four years after the contract is performed. In the alternative you may claim damages for defective advice, subject to the five year period of article 1964.2. Proving that it assessed your profile falls on the bank.

You had eighty thousand euros in a fixed term deposit that was maturing. Your usual branch offered to renew it at a better return and you signed where you were shown, in ten minutes, without taking away a copy of anything. Four years later you discover that it was not a deposit: it was subordinated debt, a structured note or units in a fund, the capital was not guaranteed and you cannot get it back when you choose. Nobody gave you any test, or one was filled in by the employee in front of you in a minute.

The case, in five lines

What is brought: Action to void the contract for mistaken consent under article 1265 of the Civil Code, with mutual restitution of what each party gave, and in the alternative an action for damages for defective advice.
Before which court: The Civil section of the Tribunal de Instancia (the first instance court) for the investor's domicile, with appeal to the Audiencia Provincial (the provincial appeal court) and, where available, cassation before the Tribunal Supremo (the Spanish Supreme Court).
Deadline: Four years of lapse for the action to void, which article 1301 counts, in cases of mistake or deceit, from the performance of the contract and not from signature. The claim for damages for defective advice is a personal action governed by the five years of article 1964.2.
Who can bring it: Whoever gave the flawed consent, that is the holder who signed the purchase or subscription order, and any co holders of the securities account. Heirs continue the position of a deceased investor.
Financial risk: If the court takes the contract to have been performed on subscription rather than on liquidation, the action to void may be held out of time and the claim dismissed, with a possible order to pay costs. That is why it is always pleaded alongside the damages claim, which has a different period.

The mistake is not that the investment went badly, but not knowing what you signed

Article 1265 of the Civil Code states that consent given by mistake, violence, intimidation or deceit is void. The claim does not rest on the product losing value, because any investment may lose value, but on your believing you were contracting something different from what you actually contracted. It is a defect in the formation of your intention, judged at the moment of signature.

Article 1266 specifies which mistake counts: to invalidate consent it must bear on the substance of the thing forming the subject of the contract, or on those of its conditions that principally gave cause to enter into it. Believing that the capital was guaranteed and recoverable at maturity is precisely a condition that gives cause to contract.

The same article adds that a mere error of calculation gives rise only to its correction. That sentence marks the boundary of the case: this is not litigation about a figure wrongly added on a statement, it is litigation because the nature of the product, its risk and its liquidity were different from those you were led to picture at the branch.

The four years do not begin on the day you signed

Article 1301 provides that the action to void lapses after four years, and sets out the starting day according to the defect. In cases of intimidation or violence, from the day these ceased. In cases of mistake, deceit or falsity of cause, from the performance of the contract. The distinction is not rhetorical: in financial products it decides the entire case.

Performance is not signature. A contract is performed once all the obligations flowing from it have been discharged, and in a long lived product with maturities, exchanges or periodic settlements that moment may fall years after subscription. Pinning down that starting day is the first task of the case and shapes everything else.

Hence the value of rebuilding the full history of the product: when it was subscribed, whether it was exchanged for shares or another instrument, when it could be liquidated, and when the money was recovered or lost. That chronology is what answers the bank when it replies that the action is out of time because more than four years have passed since the purchase order.

The test you were never given is evidence for you, not just missing paper

Securities market rules require firms to assess the client before placing a product: a suitability assessment where advice is given and an appropriateness assessment where it is not. Those duties are today contained in Law 6/2023 on Securities Markets and Investment Services, and they are obligations of the firm, not burdens on the client.

The procedural consequence is what matters. If no test appears, or one appears filled in by the employee on the day of signature, the firm cannot maintain that you understood the risk, because the very mechanism designed to check it was never used. The absence of the document is not a neutral gap: it points to consent formed without the information owed.

Your profile counts, and a deposit saver is not an experienced investor

A mistake voids the contract only if, besides being essential, it is excusable, that is if normal diligence could not have avoided it. Here the client's profile decides almost everything: a retired person, with all their savings in fixed term deposits and no prior experience of equities, is in no position to detect on their own that a prospectus describes a subordinated and perpetual instrument.

On the other side stands trust in the branch. Where the product is not sought out but offered, where it is proposed by the manager of a branch used for decades and presented as the natural renewal of a maturing deposit, the diligence demanded of the client falls and that demanded of the firm rises. That relationship of trust is documented and taken into the claim.

Signing a document declaring that you know and accept the risks does not close the door. Such pre drafted statements, built into the form the firm prepares, do not by themselves show that the information was actually given, and that is the argument made when the bank puts them forward as the main plank of its defence.

If the contract is voided, each party gives back what it received

Voiding is not compensation: it erases the contract and restores the earlier position. You recover what you invested with interest and hand back any coupons, dividends or returns you received, likewise with interest. The net result is usually clearly favourable where the product has lost a large part of the capital.

The damages claim works differently and is therefore pleaded in the alternative. There the contract is not erased: the firm is asked to answer for the loss caused by advising badly, and its period is that of personal actions under article 1964.2, five years from when performance of the obligation could be demanded.

How we run the case, step by step

1
We recover the complete file on the product
We require the firm to produce the purchase order, the prospectus handed over, the suitability and appropriateness tests, the product sheet and the securities account statements. Whatever does not exist in that file becomes an argument in the case.
2
We fix the date the contract was performed
We rebuild the life of the product to its maturity, exchange or liquidation, because the starting day of the four years under article 1301 comes from there. That date decides whether the action to void is still alive.
3
We document your real investor profile
We gather the history of products held, your age, your education and the origin of the money. A deposit saver who has never held equities is the fact that supports the mistake being excusable.
4
We claim in writing and quantify the loss
We send a reasoned claim to the firm with the calculation of what was invested, what was received and what was lost. It serves to attempt a settlement and to record the date on which the firm learned of the claim.
5
We sue with both actions pleaded
The claim seeks the contract to be voided for mistake with mutual restitution and, in the alternative, damages for defective advice. Pleading both prevents a possible lapse of the first from destroying the whole case.

The evidence that decides the case

The signed purchase order or subscription form, with its date and the amount invested.
The suitability or appropriateness test, or the firm's certification that none exists on file.
The securities account history for earlier years, showing that you had only ever held deposits.
The prospectus or sales sheet handed to you, compared with the one the firm used internally.
The evidence of the employee who sold the product and of the branch manager at the time.
The statements showing when the product matured, was exchanged or was liquidated, to fix performance.

What closes the door

Waiting to see whether the product recovers. Article 1301 sets four years of lapse and that period is not interrupted by claims or by conversations at the branch.
Stopping at the complaint to the supervisor and never moving to the civil courts. While a ruling that does not bind the firm is awaited, the lapse period keeps running.
Accepting an exchange, a partial buy back or a replacement product by signing a document of acceptance. That act will later be raised as confirmation of the flawed contract.
Pleading only the action to void. If the court places performance at the date of subscription, the whole case collapses for not having sought damages in the alternative.

The law that applies

Art. 1265 CC. Declares void any consent given by mistake, violence, intimidation or deceit. It is the provision supporting the action where the client believed they were contracting a different product from the one actually subscribed. BOE-A-1889-4763
Art. 1266 CC. Requires the mistake to bear on the substance of the thing forming the subject of the contract or on those conditions that principally gave cause to enter into it, states that a mistake as to the person invalidates only where that consideration was the main cause, and clarifies that a mere error of calculation gives rise only to its correction. BOE-A-1889-4763
Art. 1301 CC. Sets four years for the lapse of the action to void and states its starting day: for intimidation or violence, from when these ceased; for mistake, deceit or falsity of cause, from performance of the contract; and it contains its own rules for contracts of minors, of persons with disabilities lacking the support measures required, and of one spouse without the other's consent. BOE-A-1889-4763
Art. 1964.2 CC. Subjects personal actions with no special period to a five year prescription running from when performance of the obligation can be demanded. This is the period governing the alternative claim for damages for defective advice, distinct from the lapse period of the action to void. BOE-A-1889-4763

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

Frequently asked questions

I signed a paper saying I knew the risks. Does that lose me the case?

Not necessarily. Such statements come pre drafted in the form the firm prepares and do not by themselves prove that the information was given and understood. What is examined is whether consent was formed with real knowledge of the nature and risk of the product, under articles 1265 and 1266, not a signature under a standard clause.

I bought the product eight years ago. Has everything lapsed?

It depends on when the contract was performed. Article 1301 does not count the four years from signature but from performance, and in long lived products that moment arrives with maturity, exchange or liquidation. If that action had lapsed, the damages claim under article 1964.2 remains, with its own five year period.

What exactly do I get back if the contract is voided?

Voiding erases the contract and requires each party to return what it received. You recover the capital invested with interest and hand back the coupons, dividends or returns collected, likewise with interest. The net result is the difference between the two sums and is usually favourable where the product lost a significant part of the capital.

The bank says it ran the test on me. How is that checked?

It is required to produce it with its date and its medium. What matters is whether it was signed on the day of purchase, whether the answers are in the client's hand or the employee's, and whether the outcome fits the real history of the securities account. A test declaring an expert someone who had only held deposits is refuted by their own statements.

I accepted an exchange for shares. Can I still claim?

What you signed when accepting it has to be examined. If the exchange was presented as the only way out and contained no waiver of claims, the case remains alive and may even place performance of the contract at that date. If the document contained an express waiver, we analyse whether it was informed, because an opaque waiver can also be challenged.

This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.