Case law

  • Case Details
    • National ID: 135/1999
    • Member State: Spain
    • Common Name:Wolfgang J and Barbel J. v “Club Casablanca Ltd.” And “Club Casablanca Management Limited”
    • Decision type: Other
    • Decision date: 13/02/1999
    • Court: Audiencia Provincial (Appellate court, Santa Cruz de Tenerife)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Timeshare Directive, Article 5, 1. Timeshare Directive, Article 9 Timeshare Directive, ANNEX
  • Headnote
    1. In order to avoid international legal fraud, the Spanish law, developing the rule of the art. 9 of the Directive 94/47, prohibits that the parties could establish a jurisdiction clause, so that every contract of timesharing of property in Spain has to be ruled by the Spanish law, no matter the place nor the date of its agreement.
    2. The breach of the duties to inform on the right to terminate and the prohibition of advance payments enables the consumer to terminate the contract, according to the rules of the Directive through which the Civil Code is interpreted.
  • Facts
    A couple of consumers signed a contract of timesharing which included a jurisdiction clause which established that the possible disputes between the parties would have to be appraise before the court in the Isle of Man. Moreover, the contract did not make clear the right to withdraw within 10 days and the right to terminate within 3 months. Finally, the consumers had to make certain advance payments of the price. While the court of first instance rejected the demand of the consumers on the basis of the court’s lack of jurisdiction, in the appeal the termination of the contract requested was granted.
  • Legal issue
    A jurisdiction clause drawn to submit the disputes on timeshare of a property in Spain to the court in the Isle of Man is unfair according to the Law 26/1984 on the Protection of Consumers as well as according to the Directive 1993/13/EEC. Also the Directive 94/47/EC “articulates formulas to avoid the so called international legal fraud, which can take place in States where the Directive has not been transposed for not having been seen the need to do it since these kind of rights are not commercialized in their territories. In order to transcribe the essential content of the aforementioned Directive and to provide the institution with a complete set of rules, has already come into force the Law 42/1998”, whose second additional provision, justified by the art. 9 of the Directive (to adopt measures so that the purchaser is never deprived from the protection of the Directive) avoids the possibility that the contract is subjected to the jurisdiction agreed by the parties. According with this rule, all the contracts to do with timesharing on properties in Spain are affected by that Law 42/1998, no matter the place and the date of its agreement.

    Once solved the procedural obstacles that the defendant wanted to use to avoid the analysis of the most relevant matters, the court acknowledges the right of the consumers to terminate the contract on the basis of two defects in the contractual relationship. On the one hand, one of the reasons being that the rights of termination and withdrawal were not clear in the contract, which allows for its termination within three months. (art. 10 of the Law 42/1998). On the other hand, the judgment mentions the prohibition of advance payments during these three months that the Law has established (art. 11 of the Law 42/1998). The judgment finally states that “in any case, as the Directive of the EU was in force when the contract was signed, and having been exerted by the claimants their right to terminate, and being the defendant obliged to accept it (arts. 1290 and 1291.5ª of the Civil Code), everything to do with the two parties involved has to be reversed to their original estate, which means that the defendant has to refund the claimants the money they paid (art. 1295 of the Civil Code)” plus the legal interests.
  • Decision

    Full text: Full text

  • Related Cases

    No results available

  • Legal Literature

    No results available

  • Result