Case law

  • Case Details
    • National ID: 545/2002
    • Member State: Spain
    • Common Name:“Sain 333 S. L.” v Francisco Javier G. B. and Amparo M. G.
    • Decision type: Other
    • Decision date: 19/09/2002
    • Court: Audiencia Provincial (Appellate court, Alicante)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Timeshare Directive, Article 1 Timeshare Directive, Article 2 Timeshare Directive, Article 3, 3.
  • Headnote
    1. All the time-sharing contracts signed after the Law of transposition of the Directive came into force have to comply with the requirements of this law, even though the timeshare regime on a particular real property already existed.
    2. Within the Spanish Law it is forbidden to use the words “property” or “shared-property” (multipropiedad) for advertising or promoting timeshare rights, at risk of being sanctioned with the nullity of contract.
  • Facts
    Two consumers signed a contract of time-sharing with a company on May 30th 1999. The company brought a lawsuit against them to demand the performance of the contract, since it is previous to the Law of 1998 of transposition of the Directive 94/47/EC, to which the consumers respond asking for the nullity of the contract since it contains the word “ownership”, legally prohibited, because it is misleading. The appellant company looses in the first instance and in the appeal.
  • Legal issue
    The legal system of the Law 42/1988 makes a distinction between on the one hand, the rules on the constitution of the timeshare right system (arts. 4-7) and on the other hand, the rules on the promotion and transmission of these rights (arts. 8-15). In the Transitory Dispositions 2nd and 3rd of the Law, it is established the need that the pre-existing systems are adapted to the new legal requirements. And the Transitory Disposition 1st establishes that in order to promote and transmit these rights, in any case, the articles 2 and 8 to 12 of the Law will be applicable.

    Therefore, any contract on promotion or transmission of rights signed after the Law came into force, as it happens in this case, regardless of whether the pre-existing system has not yet adapted to the new law, the articles 8 to 12 will be applied with the utmost severity. Evidence of this are the articles 10 to 12 of the Law 42/1998 which are included in the contract of this case.

    The art. 8.1 of the Law 42/1998 to do with the duty to provide with general information expresses specifically (something that it is not done in the Directive) that “it is prohibited the transmission of timeshare rights with the word ‘shared-property’ (multipropiedad) or with any other denomination that contained the word “property”. It is repeatedly expressed in the contract that the purchasers become owners or co-owners and that the object which is transmitted is “shared-property”.

    Therefore this rule must be applied to the contract, because it was signed after the Law came into force, and the legal consequence of its infraction is the nullity of the contract due to the infringement of a mandatory rule (art. 6.3 of the Civil Code).
  • Decision

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