The court points out that in order to solve numerous similar cases on this matter, it is necessary to make a correct analysis of the exact nature of the law in dispute by the parties. The timeshare rights can take three different legal configurations: one as “proprietary nature”, in which the purchasers have an authentic right in rem of ownership or usufruct. Other of a “personal nature”, based on the obligations attached to rights of use as the leasing. And a third possibility, which configures these rights as a limited company/society owner of the whole, for whom purchasing the shares grants the right to make use of the place within a certain limit of time. This diverse set up of the time-sharing has been developing, as it is clear from the modified proposal of the Directive of 1993 (art. 2). “Although our most recent Law 42/1998, of 15th December has not considered the corporation form, there are no doubts that the foreign public limited companies will be able to continue using this corporation form which seems so popular particularly among British companies”
(As the SAP Málaga of 10th May 2000 adds, the Spanish law only considers the form of right in rem and the form of right in personam as a lease, “what does not leave out the possibility where, according to the European rules, companies in the form of public limited company, so popular among British companies, could be constituted. They can operate in our territory applying their own rule since it involves a right of personal nature, whose regulation is not strange nor immaterial to our legal system, as for the claimant to be able to attack it on the basis of its novelty, confusion or irregularity”).
The claimant consumers intend to obtain the nullity of the contract on the basis of an error in the consent at the moment of signing the contract, which is rejected by the court, since these errors have to be treated as exceptions and have to be conditioned by the following requirements repeated by the Supreme Court (it quotes numerous judgments): a) that the error is essential and inexcusable, b) that it is substantial and derives from unknown actions for whoever is bound by it c) that it had not been possible to avoid by regular diligence and d) that it is sufficiently proved. This judgment is of the view that this requirements are not present in the case, because the consumers agreed the contract in their own language and before these contracts they had already agreed and enjoyed other timeshare rights in the “Club la Costa”, so the contract is valid.
The court does not accept either the alternative request of terminating the contract according to art. 1124 of the Civil Code, because it has not been proved any failure to fulfil the agreements on the contract by the vendor. And the right to withdraw within 10 days that the Directive of 1994 allows and the right of termination within 3 months are not applicable either because it is only invoked an alleged deceit in the price and the deadlines have expired. It is not accepted either that the clauses in the contract are abusive, or that they are not very clear, so the contract is valid and has to be performed.
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