Case law

  • Case Details
    • National ID: 04B074
    • Member State: Portugal
    • Common Name:link
    • Decision type: Other
    • Decision date: 04/03/2004
    • Court: Supremo Tribunal de Justiça (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Timeshare Directive, Article 1 Timeshare Directive, Article 5, 1.
  • Headnote
    1. The requirements for a pre-contract for the right of use of immovable property on a part-time basis to be considered valid cannot be more stringent than for a contract covering the definitive transfer of the same right.
  • Facts
    In this case, the issue at stake was whether a pre-contract for the right of use of immovable property on a part-time basis could stipulate that the signatures of both parties needed to be witnessed or only that of the seller. The question arose because the relevant legislation was not unequivocal on the matter (cf article 17 of Decree 275/93).
  • Legal issue
    The court was faced with two alternative solutions. The first was to apply article 410 no. 3 of the Civil Code, under which the signatures of both parties had to be witnessed for a pre-contract to be valid. The other was to apply article 17 of Decree 275/93, arguing, a fortiori, that only the seller’s signature needed to be witnessed for the right to be properly transferred and that a pre-contractual pledge did not have to meet further conditions in order to be valid.
    The Supreme Court adopted the latter position on the basis of three arguments. Firstly, legislators regulating the right of use on a part-time basis were fully aware of what was laid down in the Civil Code (after its 1986 revision). As such, the decision not to adopt an identical solution must have been deliberate and therefore significant in terms of interpreting the provisions governing the right of use on a part-time basis. As far as the right of use on a part-time basis is concerned, consumer protection is guaranteed by other means than those laid down in the Civil Code: it is not a question of stipulating that there must be a solemn agreement, but rather that there must be other means available, such as the right of withdrawal. Finally, the drawing up, transfer or conclusion of pre-contracts in analogous areas is governed by special legislation, according to the “lex specialis generali derogat” rule. Hence, the provisions in Decree 275/93 took precedence over those in the Civil Code.
  • Decision

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  • Result