Rethinking the extinctive prescription for restitution under an invalid mortgage charge clause. (II) Malae fidei debitori praescriptio non liceat

Abstract

In these two successive documents, I try to reconstruct a different solution to that which the CJEU and the SC have enshrined with regard to the limitation period of the action for restitution of expenses paid on the basis of an abusive clause assigning mortgage expenses to the debtor. The thesis enshrined is a paralogism, because under the appearance of seeking a certain term a quo of the term, what it does is to attribute to the action for recovery a regime of imprescriptibility equivalent to that of the action for nullity. In the second paper, and in spite of the criticisms made in the first, I propose an original solution to save in fact, but in another way, the resolution of cases decided under the umbrella of imprescriptibility.