Case law

  • Case Details
    • National ID: 196/2004
    • Member State: Spain
    • Common Name:Sergio and Carmela v “Free Enterprise S. L.”
    • Decision type: Other
    • Decision date: 24/05/2004
    • Court: Audiencia Provincial (Appellate court, Cantabria)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Timeshare Directive, Article 4 Timeshare Directive, Article 5, 1. Timeshare Directive, Article 6 Timeshare Directive, ANNEX
  • Headnote
    1. The prohibition of advance payments is in force during the 10 days of the cooling-off period, but also during the months during where the consumer, who did not get all the compulsory information according to the law, can terminate the contract.
    2. All the information that art. 9 of the Law 42/1998 (similar, although even wider than the prescribed by the art 4.1 of the Directive) impose as the minimal content of the contract has to be provided as an appendix attached to the contract, so it is not good enough to provide a book-appendix detached from the contract. It does not suffice to make general references to appendixes since that information has to be inserted in the contract.
  • Facts
    Two consumers signed a contract of acquisition of timeshare rights on 19th January 2001. At that point they got not only a copy of the contract but also, according to the defendant company, an appendix of 146 pages in the form of a book where all the elements of information that imposes art. 9 of the Law 42/98 (similar, although even broader than the ones in art. 4.1of the Directive) were gathered. Moreover, fifteen days after signing the contract the consumers advanced part of the total payment. Within less than three months from that moment, to be precise on 11th April 2001, the consumers transmitted to the seller their wish to terminate the contract on the basis of the advanced payments that they should not have made, saying that they only became aware of the prohibition of advance payments after signing the contract.
  • Legal issue
    The court rejects the line of argument of the defendant company. The defendant claims that the prohibition of advance payments of art. 11 of the Law 42/1998 refers only to the 10 days after the contract is signed (cooling-off period). The court’s view is that this statement is wrong, because according to this rule, „it is prohibited any advance payment from the purchaser to the vendor before the period for the right of withdrawal to be exerted expires or while the capacity to terminate the contract, that the previous article refers to, still exists“ that is, when the contract did not contain some of the required information required by law or when the consumer was not sufficiently informed of his legal rights, in which case he has the right of terminating the contract within 3 months. Therefore the court declares that it is proved that this duty to provide with information was not fulfilled (minimum, essential content of the contract) so the violation of the prohibition of paying advances applies too during the period of three months, during which the consumer that was inadequately informed can terminate the contract.

    The judgment interprets that the infringement of the duty to inform imposed by the arts. 9 and 10 of the Law 42/1998 happened because many of these informative elements were not included in the contract, but contained in an appendix that the defendant company claimed having given to the consumers (a booklet of 146 pages, which in any case was not signed by the consumers nor it was proved that had been handed at the time of signing the contract). „Generic references do not suffice. The Law demands that these three specific items (inventory, general conditions not included in the contract and registered statutory clauses) are identified specifically, determined and signed by the parties. What the Law demands is that whoever offers a standard form of contract does it fulfilling scrupulously the legal requirements so that whoever accepts it could have full knowledge of at least these three points.

    Moreover, the contract in this case did not insert literally the arts. 10, 11 y 12 of the Law 42/1998, as this Law imposes literally (art. 9.1.6). According to the judgment, „generic references to appendixes do not suffice: they have to be inserted in the contract. The Law is clear, and in very few occasions so explicit. It is not acceptable to insert them even in an inseparable appendix“, since they make the minimal content of the contract. As other judgments have pointed out (SAP Castellón, 20th May 2002), to include in such a lengthy appendix such rights „intends to loose them in the ample and minuscule text of that Law“.

    In conclusion, the payment of advances on the price before the three months period (as it was also pointed out in SAP Valladolid of 4th December 2000) as well as not fulfilling the minimal requirement as for content of the contract, allow the termination of the contract.
    The lack of information provoked serious discomfort that the judgment views under the institution of “moral damage”. It does not apply to refund the consumers with the price of the trip because this took place as it was planned. The extra expenses of phone calls should not be refunded either, since in Spain there was enough information on the tragedy, so one or two phone calls would have been enough, nor the medical expenses, since there was no causal connection. Therefore only moral damage is acknowledged due to the “remarkable unease” inflicted to the travelers during the journey from Istambul to Ankara, since the situation was objectively likely to produce anguish and an abnormal level of tension in people”, although it never became an extremely serious situation in which the appellants would have come straight back to Spain from Ankara, without visiting Capadocia at a later stage, as it happened, so it is decided a compensation of 1,000 euros for each one of the appellants.
  • Decision

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