The recent judgment of the Supreme Court dated 15 January (number 830/2015. Appeal 3190/2012) has established case law when states in its Decision, second paragraph, that "in the legal regime established by Law 42/1998, of December 15, on timeshare rights, lack of determination in the contract of the accommodation to which it relates determines the nullity of that contract, as provided in Article 1.7 in connection with 9.1.3 of the Act."
This judgment considers the case of a "floating" week, however the decision can be applied to both systems, floating and "points", since in both cases the object is clearly unknown in the way required by law 42/98 in its article 9.1.3º.
It should be noted that Law 42/98 is an eminently protective consumers rights law and has come to put an end to many abuses being committed in the timeshare business. In its Preamble, Section I, makes it clear that it wants to limit the autonomy to wherever advisable, prohibiting marketing systems that not included in the Law (Article 1.7 of the Act). In section II she continues to say that the restrictive scope of the law also advises to create its own “system of conflict resolution” for those timeshare systems, or SIMILAR to them, that are constituted without complying with the law, declaring, following Article 1.7, its radical and absolute nullity.
The same Supreme Court in another judgment, nº 774/2014 ,(Appeal 961/2013) has come to emphasize this. Thus in its Seventh Legal Ground, second paragraph, says that what the legislator intended when enacting the law 42/98 was to give a complete regulation of Timeshare so anything that does not follow what the Law includes has to be considered a fraud of law and therefore has to be declared null and void according to Article 1.7.
It is obvious that the points system does not comply with law 42/98 and many times is sold as being outside its legal framework, as if it were not timeshare. But the truth is that the Law also refers to those "similar systems" that are created with the clear purpose of avoiding the applicability of a comprehensive and restrictive law and considers this as a fraud and consequently the contracts signed should be considered null and void
Clubs in Spain who market these systems points are many, increasingly, among them stand out for importance "Diamond Resort" (formerly Sunterra) or "Club La Costa".
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