Case law

  • Case Details
    • National ID: link
    • Member State: Spain
    • Common Name:Fernando R. M. and Jacinta F. P. v “Mundivac, S. A.” and “Aqualandia S. A.”
    • Decision type: Other
    • Decision date: 04/05/2001
    • Court: Audiencia Provincial (Appellate court, Castellón)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Timeshare Directive, Article 1 Timeshare Directive, Article 5, 1.
  • Headnote
    1. A contract, previous to the enactment of the Law of transposition of the Directive on timesharing, but signed after the deadline for the transposition of the Directive can be subject to the application of the rights of withdrawal and termination of the Directive in accordance with the doctrine of the horizontal effectiveness established by the ECJ.
    2. The lack of determination of the object of the rights and of the clarity of the contract can mistake the consent of the purchaser and therefore bring about the nullity of the contract.
  • Facts
    The consumers received a phone call and were invited to spend a weekend free of charge in an apartment in Peñíscola and to attend a meeting in which they were informed of the possibility of acquiring some timeshare rights. On 15th March 1998 they acquired these rights therefore it was after the deadline for the transposition of the Directive 42/1998 and before the Law 42/1998 that transposed it came into force. The same day they signed the contract they paid 300 euros and signed 60 bills of exchange to satisfy the payment of 4,477 euros. Out of the clauses of the contract as a foot note in a significant smaller type and of less intensity of print than the rest of the contract, it was written that the purchaser has the right to terminate the contract within 7 days from the moment it was signed, providing a deposit of 25% of the total price was made as compensation for the seller as a penalty clause. On 27th March 1998 the purchasers sent a telegram to the vendor where they express their wish to revoke the sale and maintenance contract. The purchaser answered in a letter on 31st March 1988 that accepted the termination of the contract providing 25% of the price was paid. The judgment in the first instance declared the nullity of the contract due to an error in the object and in the consent, which was confirmed in the appeal.
  • Legal issue
    After a historic review from the Civil Code to the Law of transposition of the Directive on timesharing of the Spanish Law, the judgment points out that the Law 42/1998 is not applicable to this contract, because of its date, although it is stressed that the contract in this case “is far from the guarantee’s system established to protect the purchaser within the law”.

    The judgment continues referring to the doctrine of the ECJ on direct vertical and horizontal effectiveness of the Directives, emphasizing the possibility that the judges can interpret the national Law (in this case the Civil Code and the Law of 1984 on the protection of consumers) according to the content and the aims of the Directive that has not been transposed yet. It also mentions the direct horizontal effectiveness when the rights were recognized in the Directive in a clear, precise and unconditional way. It quotes on the same line of argument the judgments of the Spanish Supreme Court (on 8th November 1996 and 18th March 1995) which follow the case law of the ECJ, as well as various judgments of the Appeal Courts that have recognized horizontal direct effectiveness in the Directive 94/47/EC (SAP Zaragoza 4th November 1997, SAP Las Palmas de Gran Canaria of 20th July 1998, SAP Málaga of 30 June 1997 and 1st July 1997). And taking all this into account concludes that the rights of withdrawal and of termination could be applied here by applying the Directive not transposed yet regarding a contract signed after the deadline of transposition.

    On the other hand, the court concludes in detail that the object of the contract was not clearly determined (neither the apartment nor the dates to have access), whereby it is concluded that “it is crystal clear that the seller party was not looking for transparency, so under these conditions the object of the contract cannot be understood, making the consent of the purchasers to be in error”, and therefore the contract is void.
  • Decision

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