The Supreme Court (-S.C.-) in its ruling, last July 21, 2016, has seen the action brought by an entity that had been ordered to repay to the applicants the amounts paid, as advance payment, for the transmission of a right of use by turns of immovable property.

In his appeal argued that the party had violated Article 11.2 of Law 42/1998, as with the condemnation of the payment of the amounts and its declaration as invalid provisions contradicted by other provincial courts due to the elapsed time, and this is because as Article in force at the time, should prevail the interpretation of the provision which states that we can only apply the action for repayment of the advance when the purchaser exercising the claim of withdrawal or resolution within the time limits indicated by precept, ten days and three months, respectively.

The Spain’s Supreme Court pointed out that “the provision referred prohibits the payment of advances, and, in accordance with Article 6.3 CC, acts contrary to peremptory norms and prohibitively are automatically void, unless in some other provision is established for the case of violation”. So, being that Article 11 has not indicated a distinct effect of nullity, but it merely states a civil penalty should be considered that the violation causes nullity.

And the Supreme Court points out that is why Article 13 of the new Law 4/2012, of July 6, now refers specifically the “nullity”.

Therefore, the high court concludes that the obligation to repay the double of the quantity delivered is a derivative of the law effect and is not conditional on the ability to withdrawal or termination of the contract is exercised, and notes “and that with independence often as in this case has been decided by the courts only payment corresponding to both sanction and not the return of the amount paid as advance price for a practical reason, since in any case the full price he agreed to be paid by the contractor and meaningless it can be estimated return for payment to be required again then. “

The amounts to be returned:

In its brief, the appellant stated that the judgment had made serious error in considering that the signing of the second contract, in which the amounts were paid in advances, payment of the amount claimed was because the defendants they signed two contracts, one part of the amount the price paid by the first contract, to be cancelled by mutual agreement, went to pay part of the price of the second contract.

In this regard, the Supreme Court confirmed the reason for the recurrent and notes that can not be considered as applying advance payment amounts corresponding to a previous contract and reduced the sentence in amount to the subscriber in the second.

We are specialist in Time-Share claims in the Canary Islands and mainland Spain.

Sáenz Abogados / Lawyers

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