Today I am referring to Law 42/98 and to contracts signed between the 5th January 1999 and the 17th March 2012. I have received lately many questions about which Courts should know about which contracts. Questions such as:
My resort is in Spain but its jurisdiction is outside of Spain does this mean that Law 42/98 does not apply to my resort? Or my Timeshare Company has a number of resorts and some are based in Spain. If my Timeshare Company has a floating week system or a Points based system but the jurisdiction is outside of Spain can the Law of 42/98 apply?
The first thing we should leave crystal clear is that any Timeshare company operating in Spain, with a Club in Spain, has to operate according to the Spanish Law. Law 42/98 reflects this in its Second Additional Provision. The title of this Provision is "Imperative nature of the Law". Its content says, "Any contracts relating to the use of one or more properties situated in Spain for a determined or determinable period of the year shall be subject to this Law, whatever the place and date of signature thereof". The legal issue is that if a “trader” markets weeks of a Club/Resort based in Spain, the applicable Law is the one of Spain, it doesn’t matter if they submit the jurisdiction to other places and it doesn't matter if the contract was signed in Spain or not.
Anyway, if you signed the contract in Spain, with a Spanish company, your case will be easier to defend before a Spanish Court than if you signed it outside Spain with a foreign company. In the second case, the defendant will surely propose a refusal of jurisdiction trying to avoid the applicability of the Spanish legislation.