Case law

  • Case Details
    • National ID: link
    • Member State: Italy
    • Common Name:link
    • Decision type: Court decision, first degree
    • Decision date: 05/02/2013
    • Court: Court of Salerno, sec. II
    • Subject:
    • Plaintiff: R.G. e S.L.
    • Defendant: SAGITTARIO DISTRIBUZIONE s.r.l.
    • Keywords: consumer, consumer rights, right of withdrawal, timeshare contract, withdrawal period
  • Directive Articles
    Timeshare Directive, Article 6, 1.
  • Headnote
    (1) Legislative Decree 427/1998 (amended by Legislative Decree 79/2011) introduced the possibility of "reconsideration" of the consumer, i.e. the right to withdrawal "ad nutum" (without having to justify the withdrawal) referred to in art. 73 of the Consumer Code within 10 days from the moment of the preliminary contract's stipulation.
    (2) Preliminary and final timesharing contracts allow the acquisition of a share of the immovable property, as well as the perpetual and imprescriptible right to the exclusive and full use of the immovable property in a predetermined period of the year. Said predetermined period as well as the immovable property can be amended if the replacement is of the same or of higher level of quality and type.
  • Facts
    The plaintiff promised to purchase a timesharing week for six persons in a resort by the defendant at the price of 17.900,00 Euros. The defendant, who promised to provide to the plaintiff such timesharing solution, subsequently communicated a time variation of a week for the holiday as well as an apartment variation with respect to the contract subscribed by the parties, due to an error in the drafting preparation. The plaintiff requested the assessment of the lack of finalization of the contract or, in alternative, its termination for failure to perform the contract by the defendant.

    The defendant requested the rejection of the application since amendments to the period of accommodation and the good are lawful if the quality and type of replacement are of an equal or higher level.
  • Legal issue
    (1) The lack of exercise of the right to withdrawal "ad nutum" (without having to justify the withdrawal) referred to in art. 73 of the Consumer Code by the plaintiff within 10 days [now 14 days]from the preliminary contract's stipulation provides that they are subject to the preliminary contract's obligations with the defendant.
    (2) There are no grounds for the termination of the contract since there is no evidence of the serious breach of contract by the defendant, and the defendant's arrangements for different period of accommodation and good are lawful, provided that the quality and type of replacement are of an equal or higher level.
  • Decision

    (1) Is the exercize of the right to withdrawal "ad nutum" (without having to justify the withdrawal) referred to in art. 73 of the Consumer Code necessary condition in order not to be subject to the preliminary contract's obligations, even when said obligations do not arise from a final timeshare contract?
    (2) Are the amendments to the period of accommodation and the good lawful if the quality and type of replacement are of an equal or higher level?

    Full text: Full text

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  • Result
    The plaintiff's request was denied.