Case law

  • Case Details
    • National ID: VIII ZR 316/96
    • Member State: Germany
    • Common Name:link
    • Decision type: Other
    • Decision date: 19/03/1997
    • Court: BGH (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Timeshare Directive, Article 9
  • Headnote
    1. A contract covering the acquisition of a timeshare entitlement for an apartment in a holiday complex does not constitute a contract for the “performance of services” as per art 29 para 1 of the Act Establishing the German Civil Code (EGBGB), if the contract also includes the management and administration of the complex.
    2. Equally, art 29 para 1 EGBGB does not apply if neither of the two contract types listed in it is in evidence, nor a national reference as per art 29 para 1 no. 1-3 EGBGB given.
    3. The special reference to the law governing withdrawal from doorstep sales and similar legal transactions via art 34 EGBGB is excluded if there is no national reference as required under art 29 para 1 no. 1-3 EGBGB.
  • Facts
    The plaintiff is a company (A-Club Sales Limited), which was founded on, and in accordance with the law of, the UK’s Isle of Man, where it is headquartered. The company sells timeshare entitlements for the A-Club holiday complex (Atlantic Beach Club) in Playa del Ingles on the Spanish island of Gran Canaria. While on holiday on the island, the defendants attended a briefing at the A-Club, during which they signed a declaration (as a form in German) covering the acquisition of a timeshare entitlement for an apartment in the holiday complex for the 31st week of every year, beginning on the 31st July 1994, and ending in the year 2073. In the declaration, the defendants, as joint debtors, committed to making a one-off payment of 28,255 DM for the entitlement and, in addition, to making annual payments of “345 DM per week” (at that time) to cover management and administration costs. Moreover, the declaration contained, inter alia, an exclusion of a right of withdrawal for the defendant, as well as a reference to the fact that the law of the Isle of Man applied. It was agreed that the defendant’s domicile would determine who had jurisdiction in the case of dispute.
    In accordance with the agreement, the defendants made an initial down-payment of 3,000 DM, but then refused to make further payments. In the case in question, the plaintiff was claiming for payment of the outstanding 25,600 DM. The defendants argued that the contract contravened good moral practice and was therefore null and void given that there was a striking discrepancy between the payment made and the service provided in return. They also stated that their revocation of their statement of intent to enter into a contract was in line with § 1 HWiG (the Act governing Withdrawal from Doorstep Sales and Similar Transactions), which was applicable in this case under art 34 EGBGB. The Regional Court (Landesgericht) upheld the claim, though the Regional Appeal Court (Oberlandesgericht) overturned the ruling on appeal.
  • Legal issue
    The BGH proceeded on the basis that, with their written declaration, the defendants had made an offer to acquire a timeshare entitlement, which the plaintiff accepted, at the latest by taking the down-payment. In the BGH’s view, the clause covering the selection of the law applying to the contract was valid according to art 27 para 1 EGBGB. Thus, the contract was subject to the law of the Isle of Man.
    In the BGH’s view, the contract between the two parties was not null and void, because the defendants withdrew their declaration of 4th January 1994 by invoking the HWiG. However, this act did not apply in this case, meaning that the defendant had no right of withdrawal.
    Importantly, the HWiG does not apply under art 29 para 1 EGBGB, because the parties did not conclude a consumer contract. In other words, the object of the contract was not the “performance of services”. Rather, the defendants’ primary aim was to acquire timeshare rights to the property; the management and the administration of the complex were merely secondary services, which are typically linked to the leasing of living space.
    Furthermore, the contract had no national reference, as required under art 29 para 1 no. 1 & 2 EGBGB, because the advertising, the contract offer and acceptance (when the plaintiff accepted down-payment) had all taken place in Spain. Art 29 para 1 no. 3 EGBGB is not relevant, as it only applies to contracts pertaining to the purchase of goods. Art 29 para 1 EGBGB could not apply, because this would mean not simply overlooking the absence of a national reference, but also applying the provision to types of contract that are not mentioned in it.
    The fact that the Timeshare Directive 94/47/EC was passed by the European Parliament and the Council of the European Union on 26th October 1994, does not alter the outcome. The fact that it was mandatory to transpose the Directive into national law in EC Member States renders a special reference to the Directive via the application of art 29 EGBGB legally superfluous, if the law of a Member State is the law that applies in the contract. Where the law of a non-EC Member State is chosen as the law that applies in a contract, a Member State is able to ensure protection of persons resident in that country via a unilateral special reference.
    Furthermore, the BGH stated that the HWiG did not apply under art 34 EGBGB on the grounds that there was no national reference as per art 29 EGBGB. Otherwise, this would mean that outside the scope of art 29 EGBGB and art 5 of the Rome Convention on the Law Applicable to Contractual Obligations, which had been designed with the express purpose of improving international consumer protection, lesser requirements would have to be met in order for the HWiG to apply. This would then lead to a higher degree of consumer protection than if art 29 para 1 EGBGB were applied directly.
    There is equally no right of withdrawal as per § 5 of the Act governing Part-time Right of Abode (TzWrG), as, under § 11, this act does not apply to contracts concluded before it entered into force on 1st January 1997.
    There is no question of directly applying Directive 85/577/ECC (corresponding to the HWiG) or the aforementioned Timeshare Directive, since, in accordance with ECJ case law (see, for example, C-192/94 (El Corte Ingles SA/Cristina Blazquez Rivero) = Neue Juristische Wochenschrift (NJW) 1996, 1401, Tz. 15ff), a Directive does not create immediate obligations for any individual, and so invoking this Directive against him is impossible.
    Because the Court of Appeal failed to reach any conclusions concerning the facts of the case, the BGB explicitly left open the question as to whether the contract contravened good moral practice as per § 138 BGB. The same was true of the question as to whether the contract and the clause covering the selection of the law applying to the contract were valid under Isle of Man law, as chosen by both parties. Since further clarification was required on these matters, the BGB ordered a retrial in the Court of Appeal.
    The plaintiff is a company (A-Club Sales Limited), which was founded on, and in accordance with the law of, the UK’s Isle of Man, where it is headquartered. The company sells timeshare entitlements for the A-Club holiday complex (Atlantic Beach Club) in Playa del Ingles on the Spanish island of Gran Canaria. While on holiday on the island, the defendants attended a briefing at the A-Club, during which they signed a declaration (as a form in German) covering the acquisition of a timeshare entitlement for an apartment in the holiday complex for the 31st week of every year, beginning on the 31st July 1994, and ending in the year 2073. In the declaration, the defendants, as joint debtors, committed to making a one-off payment of 28,255 DM for the entitlement and, in addition, to making annual payments of “345 DM per week” (at that time) to cover management and administration costs. Moreover, the declaration contained, inter alia, an exclusion of a right of withdrawal for the defendant, as well as a reference to the fact that the law of the Isle of Man applied. It was agreed that the defendant’s domicile would determine who had jurisdiction in the case of dispute.
    In accordance with the agreement, the defendants made an initial down-payment of 3,000 DM, but then refused to make further payments. In the case in question, the plaintiff was claiming for payment of the outstanding 25,600 DM. The defendants argued that the contract contravened good moral practice and was therefore null and void given that there was a striking discrepancy between the payment made and the service provided in return. They also stated that their revocation of their statement of intent to enter into a contract was in line with § 1 HWiG (the Act governing Withdrawal from Doorstep Sales and Similar Transactions), which was applicable in this case under art 34 EGBGB. The Regional Court (Landesgericht) upheld the claim, though the Regional Appeal Court (Oberlandesgericht) overturned the ruling on appeal.
    Reasons: The BGH proceeded on the basis that, with their written declaration, the defendants had made an offer to acquire a timeshare entitlement, which the plaintiff accepted, at the latest by taking the down-payment. In the BGH’s view, the clause covering the selection of the law applying to the contract was valid according to art 27 para 1 EGBGB. Thus, the contract was subject to the law of the Isle of Man.
    In the BGH’s view, the contract between the two parties was not null and void, because the defendants withdrew their declaration of 4th January 1994 by invoking the HWiG. However, this act did not apply in this case, meaning that the defendant had no right of withdrawal.
    Importantly, the HWiG does not apply under art 29 para 1 EGBGB, because the parties did not conclude a consumer contract. In other words, the object of the contract was not the “performance of services”. Rather, the defendants’ primary aim was to acquire timeshare rights to the property; the management and the administration of the complex were merely secondary services, which are typically linked to the leasing of living space.
    Furthermore, the contract had no national reference, as required under art 29 para 1 no. 1 & 2 EGBGB, because the advertising, the contract offer and acceptance (when the plaintiff accepted down-payment) had all taken place in Spain. Art 29 para 1 no. 3 EGBGB is not relevant, as it only applies to contracts pertaining to the purchase of goods. Art 29 para 1 EGBGB could not apply, because this would mean not simply overlooking the absence of a national reference, but also applying the provision to types of contract that are not mentioned in it.
    The fact that the Timeshare Directive 94/47/EC was passed by the European Parliament and the Council of the European Union on 26th October 1994, does not alter the outcome. The fact that it was mandatory to transpose the Directive into national law in EC Member States renders a special reference to the Directive via the application of art 29 EGBGB legally superfluous, if the law of a Member State is the law that applies in the contract. Where the law of a non-EC Member State is chosen as the law that applies in a contract, a Member State is able to ensure protection of persons resident in that country via a unilateral special reference.
    Furthermore, the BGH stated that the HWiG did not apply under art 34 EGBGB on the grounds that there was no national reference as per art 29 EGBGB. Otherwise, this would mean that outside the scope of art 29 EGBGB and art 5 of the Rome Convention on the Law Applicable to Contractual Obligations, which had been designed with the express purpose of improving international consumer protection, lesser requirements would have to be met in order for the HWiG to apply. This would then lead to a higher degree of consumer protection than if art 29 para 1 EGBGB were applied directly.
    There is equally no right of withdrawal as per § 5 of the Act governing Part-time Right of Abode (TzWrG), as, under § 11, this act does not apply to contracts concluded before it entered into force on 1st January 1997.
    There is no question of directly applying Directive 85/577/ECC (corresponding to the HWiG) or the aforementioned Timeshare Directive, since, in accordance with ECJ case law (see, for example, C-192/94 (El Corte Ingles SA/Cristina Blazquez Rivero) = Neue Juristische Wochenschrift (NJW) 1996, 1401, Tz. 15ff), a Directive does not create immediate obligations for any individual, and so invoking this Directive against him is impossible.
    Because the Court of Appeal failed to reach any conclusions concerning the facts of the case, the BGB explicitly left open the question as to whether the contract contravened good moral practice as per § 138 BGB. The same was true of the question as to whether the contract and the clause covering the selection of the law applying to the contract were valid under Isle of Man law, as chosen by both parties. Since further clarification was required on these matters, the BGB ordered a retrial in the Court of Appeal.
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