Case law

  • Case Details
    • National ID: R06/016HR
    • Member State: Netherlands
    • Common Name:X v. Hotel Kura Hulanda (Westpunt)
    • Decision type: Other
    • Decision date: 26/10/2007
    • Court: Hoge Raad (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Timeshare Directive, Article 2
  • Headnote
    Timeshare contract may be any contract, whether rent, sale or of other type contract.
  • Facts
    Westpunt Resort Development NV has a long-term lease on a land on Curaçao where Kura Hulanda Westpunt is located. At a certain point the economic ownership of the long-term lease was transferred to Kadushi Cliffs Resort Development NV under provision that also legal ownership of this lease would be transferred as soon as possible. Kadushi Cliffs gave away timeshare rights to apartments located on the leased land. Consumers are one of the owners of a timeshare. They concluded 9 contracts between 1993 and 1996 with Kadushi Cliffs with respect to vacation ownership plan, on the basis of which they could use a specific unit for 9 weeks per year (as indicated). Kadushi Cliffs became insolvent and curators thereof concluded a contract with Kura Hulanda Westpunt as to the transfer of the economic ownership of the lease. Kura Hulanda Westpunt promised to respect existing timeshare rights as long as they could be classified as rental contracts. Consumers demand to be allowed to use the units in the weeks determined in the timeshare contract under a penalty fee for every day of delay. The conflict arose due to the different classification of the contract by the parties.
  • Legal issue
    The courts of the first instances declared that the consumers did not conclude a rental contract. Pursuant to art. 7A:1565 BW a rental contract should be concluded for a limited period of time. The timeshare contract were concluded for an unlimited period of time and only consumers could at any point cancel these contracts. Kadushi Cliffs could only terminate the contract in case of non-performance on the side of the consumers. The Supreme Court decides that while a timeshare contract could under certain circumstances be classified as a rental contract, this does not always hold true. The requirement that a rental contract is concluded for a limited period of time was changed in the Dutch civil law (art. 7:201 BW) but it does not automatically change the civil law that binds on the territory of the Dutch Antilles. However, the old provisions also allowed for a rental contract concluded for an unlimited period of time to be terminated, and therefore to be seen as a rental contract. As a result an automatic dismissal of a rental character of a timeshare contract, due to it not having an end date, is unjustified. Timeshare contract may be any contract, whether rent, sale or of other type contract.
  • Decision

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