European e-Justice Portal

Case Details
- National ID: Court of Appeal, Judgment 19/2016
- Member State: Malta
- Common Name:Joseph Gauci vs Platinum International (Malta) Limited
- Decision type: Court decision in appeal
- Decision date: 12/01/2018
- Court: Court of Appeal
- Subject:
- Plaintiff: Joseph Gauci and Shirley Gauci
- Defendant: Platinum International (Malta) Limited (C31481)
- Keywords: Long-term holiday product; consumer affairs; cooling off period; right of withdrawal

Expand all|Collapse all

Directive Articles

Timeshare Directive, link
Headnote

Cooling off period: if the agreement between the consumer and a trader deals with timeshare, a long-term holiday product, resale, and an exchange contract, the consumer benefits from a cooling off period and can thus withdraw from the agreement. This applies despite the agreement between the consumer and the trader suggesting otherwise.
Facts

The plaintiffs had brought a lawsuit before the Arbitral Tribunal for the refund of the money they spent on a long-term holiday product as defined in regulation 3 of the Protection of Consumers (Timeshare, Long-Term Holiday Product, Resale And Exchange Contracts) Regulations (Legal Notice 109 of 2011).

The plaintiffs wanted a refund for the sum of €1150 paid by them as a deposit concerning the long-term holiday product, the total value of which was €2150. The request for a refund came after the plaintiffs exercised their right of withdrawal in terms of article 8 of the said Regulations. The plaintiff argued that once they decided to exercise their right of withdrawal, the agreement they had in place with the defendant was terminated and hence they had the right to be put back in the position they were prior to entering into this agreement. The plaintiffs also pleaded that, on the basis of article 9 of the Regulations, the defendant had wrongfully asked for an advance payment for the product. The defendant refused to refund the money to the plaintiffs and the latter brought an action before the Arbitral Tribunal.

On the 4 July 2016, the Arbitral Tribunal ruled in favour of the plaintiffs. Subsequently, the defendant appealed reiterating that since the long-term holiday product lasted for more than 11 months, the plaintiffs as consumers could not benefit from a cooling off period in terms of the Regulations. This was also listed as a condition in the agreement. The defendant also claimed that it could not be considered a trader in terms of the Regulations.
Legal issue

This case concerns the application and interpretation of the Protection of Consumers (Timeshare, Long-Term Holiday Product, Resale And Exchange Contracts) Regulations and the fact that a cooling off period exists for long-term holiday products, even when the contract excludes it.
Decision

The Court of Appeal found that the Arbitral Tribunal was justified in concluding that the contract was a long-term holiday contract and agreed with the Arbitral Tribunal’s decision to disregard the clause in the agreement stating that the plaintiffs do not benefit from a cooling off period. This is in line with what is provided for in article 8 of the Protection of Consumers (Timeshare, Long-Term Holiday Product, Resale And Exchange Contracts) Regulations.

The Court stated that despite there being a clause in the contract stating that the plaintiffs could not exercise a right of withdrawal with regard to the long-term holiday product they purchased, it agreed with the Arbitral Tribunal’s decision to disregard that clause. Hence, the plaintiffs had the right to withdraw from the contract on the basis of regulation 8 of the Regulations.

URL: https://ecourts.gov.mt/onlineservices/Judgements/Details?JudgementId=0&CaseJudgementId=109756

Full text: Full text
Related Cases

No results available
Legal Literature

No results available
Result

The Court, thus, disregarded the appeal and upheld the decision of the Arbitral Tribunal.

Case law

Full text