Fixed and Floating weeks Spain Legal issues LAW 42/98
In the event, the resort argues that your product is not a “Long Term Holiday Product” they ought to consider the other issues we will raise on behalf of our client will raise.
It sometimes happens that a resort is hell bent of disproving one legal issue only to land themselves in trouble with another.
Following two recent decisions by the Spanish Supreme Court, the Membership in clubs has been utterly frustrated.
A supervening event has occurred, namely, the recognition by the Spanish Supreme Court, that many timeshare contracts (our Clients entered into) and (which gives meaning to) and (justification for the maintenance contract) are unlawful. In these altered circumstances, it would plainly be unjust to require one of TESS’s clients to continue to pay maintenance fees and retain Membership in a timeshare club.
Typically, fixed or floating week timeshares and the selling of them are governed by the Spanish law. Spain, therefore has Jurisdiction and the Supreme Court has ruled in the cases of Maria Rosa -v- Anfi Sales SL) and (Eusebio & Antonieta -v- Banco Guipuzcoano SA). The Court held that both agreements were void ab initio. In the Maria Rosa case, this was because the terms of her agreement were contrary to provisions under Spanish National Legislation Law 42/98 – specifically because the term of her agreement was not limited to a maximum duration of 50 years. In the Eusebio case, the agreement was held to be void because it failed to specify the particular property comprising the subject of the agreement (again contrary to Law 42/98).
TESS is now actioning/pursuing hundreds of timeshare claims as many of our client’s timeshare contracts mirrors the issues in those judgements and therefore, is also void and contrary to Spanish National Legislation Law 42/98.
Once compatibility is established, an obligation to pay ongoing maintenance fees and towards the upkeep of the Spanish property is in law, frustrated. English and “Common” law establishes a contract may be discharged under the so-named doctrine of frustration, the doctrine has been formulated in the following terms:
“Frustration of a contract takes place when there supervenes an event (without default of either party and for which the contract makes no sufficient provision) which so significantly changes the nature (not merely the expense or onerousness) of the outstanding contractual rights and/or obligations from what the parties could reasonably have contemplated at the time of its execution that it would be unjust to hold them to the literal sense of its stipulations in the new circumstances; in such case the law declares both parties to be discharged from further performance.
This legal principle protects one party from being harmed by another party’s voluntary conduct. Voluntary conduct may be an action, silence, acquiescence or concealment of material facts. The club knew or ought to have known that the sales contract was authored in contravention of the Spanish National Legislation Law 42/98.
Last modified: 15th June 2018