Chapter 20
CONTRACTS RELATING TO PURCHASE OF RIGHT TO USE BUILDINGS ON TIMESHARE BASIS, LONG-TERM HOLIDAY PRODUCT CONTRACTS, AGENCY AGREEMENTS AND EXCHANGE SYSTEM CONTRACTS
[RT I, 31.12.2013, 1 – entry into force 13.06.2014, the word “vendor” in Chapter 20 of the Act, is substituted by the word “trader” in the appropriate case form]
- 379. Definition of contract relating to purchase of right to use buildings on timeshare basis
(1) By a contract relating to the purchase of the right to use immovables, buildings or parts of buildings or movables used for accommodation purposes (a building) on a timeshare basis, a person who is engaged in professional or economic activities (trader) undertakes to grant a consumer the right to use the building for accommodation purposes over the course of more than one year for a specified or specifiable period during several periods of use. The consumer is required to pay a fee therefor.
(11) In calculating the duration of the contract, any agreement in the contract concerning extension of the contract shall be taken into account.
[RT I, 04.02.2011, 2 – entry into force 23.02.2011]
(2) The right specified in subsection (1) of this section may be a real right, any other right relating to the use of one or more buildings, or membership in an association of persons or holding in a company which grants such right of use.
- 3791. Definition of long-term holiday product contract
By a long-term holiday product contract, the trader undertakes to grant a consumer the right to obtain benefits upon the use of the building over the course of more than one year and the consumer undertakes to pay a fee therefor. In calculating the duration of a contract, the provisions of subsection 379 (11) of this Act apply.
- 3792. Definition of agency agreement and exchange system contract
(1) By an agency agreement, the trader undertakes to act as an intermediary for a consumer who enters into contracts with third persons or to indicate opportunities for entering into contracts with third persons, and the consumer undertakes to pay a fee therefor to the trader. The objective of the contract with the trader is the delivery, acquisition or transfer of the rights arising from a contract relating to the purchase of the right to use the building on a timeshare basis or a long-term holiday product contract.
(2) The provisions concerning brokerage contracts also apply to agency agreements unless the provisions of this Chapter provide otherwise.
[RT I, 04.02.2011, 2 – entry into force 23.02.2011]
(3) By an exchange system contract, the trader undertakes to enable the consumer, for a charge, to share in a system which purpose is to grant on timeshare basis the rights arising from a contract relating to the purchase of the right to use the building on a timeshare basis between the consumers for a charge or without a charge.
- 380. Precontractual information and advertising
(1) In good time before the consumer enters into a contract relating to the purchase of the right to use the building on a timeshare basis or makes a binding declaration of intent, the trader shall submit to the consumer on a durable medium which is easily accessible to the consumer, in a clear and comprehensible manner and free of charge the precontractual information setting out the following data:
1) name, address and legal status of the trader which is a party to the contract;
2) short description of the use of the building on timeshare basis, e.g. description of the building;
3) exact nature and content of the right;
4) exact period within which the right which is the subject of the contract may be exercised and, if necessary, its duration;
5) date on which the consumer may start to exercise the contractual right;
6) date on which the building and facilities or services will be complete or become available if the subject of the contract is a specific building under construction;
7) charge to be paid by the consumer for acquiring the right;
8) outline of additional obligatory costs imposed under the contract, e.g. annual fees, other recurrent fees, levies, local taxes, including type of costs and indication of amounts;
9) summary of key utilities services available to the consumer, e.g. electricity, water, maintenance, refuse collection, and an indication of the amount to be paid by the consumer for such services;
10) summary of facilities, such as swimming pool and sauna, which the consumer has the right to use;
11) information concerning whether the cost of using such utilities services and facilities are included in the costs indicated in clause 8) of this subsection;
12) specification of what is included in the costs indicated in clause 8) of this subsection and what has to be paid for, if the cost of using such utilities services and facilities are not included in the costs indicated in clause 8) of this subsection;
13) information concerning whether the consumer has the possibility to join the exchange system;
14) name of the exchange system, if the consumer has the possibility to join the exchange system;
15) indication of costs for membership in an exchange of the exchange system, if the consumer has the possibility to join the exchange system;
16) information concerning whether the trader has signed a code of conduct and, if yes, where can it be found;
17) the right of the consumer to withdraw from the contract within 14 calendar days from the entry into the contract or a preliminary contract or receipt of these contracts if that takes place later;
18) prohibition of advance payments during the withdrawal period according to which it is explained that the prohibition concerns any payments, provision of guarantees, explicit acknowledgement of debt and performance of other such transactions or acts, and it includes not only payments from the consumer to the trader, but also to third parties;
19) information on that the consumer shall not bear any costs or obligations other than those specified in the contract;
20) information on that in accordance with international private law, the contract may be governed by a law other than the law of this member state of the European Union in which the consumer is resident or is habitually domiciled, and possible disputes may be referred to courts other than those of the member state of the European Union in which the consumer is resident or is habitually domiciled.
(11) In addition to the information specified in subsection (1) of this section, the trader shall also present the following information to the consumer:
1) conditions governing the exercise of the right which is the subject of the contract within the territory of the member states of the European Union in which the building is situated and information on whether those conditions have been fulfilled or, if they have not been fulfilled, what conditions remain to be fulfilled;
2) where the contract provides the right to use the building to be selected from a pool of buildings, information on restrictions on the consumer’s ability to use any building in the pool at any time;
3) an accurate and detailed description of the immovable and its location or sufficient description of the building and its location if the object of the contract concerns a number of buildings (multi-resorts), or a sufficient description of the building and facilities belonging thereto if the object of the contract is not an immovable;
4) the utilities services, e.g. electricity, water, maintenance, refuse collection, to which the consumer has or will have access to and under what conditions;
5) the common facilities, such as swimming pool, sauna, and the conditions for the use thereof, where the consumer has or may have the right for the use thereof;
6) accurate and appropriate information concerning all costs associated with a contract relating to the purchase of the right to use the building on a timeshare basis and on how these costs will be divided between the consumers and how and when such costs may be increased, and the method for the calculation of the amount of charges relating to use of the building, statutory monetary obligations, e.g. taxes and fees, and the administrative overheads, e.g. management, maintenance and repairs;
7) information concerning any charges, encumbrances, mortgages or other rights of security entered in a register;
8) information concerning the procedure for and consequences of termination of linked contracts if the consumer is offered to terminate the linked contract;
9) conditions for terminating the contract, the consequences of termination and information on any liability of the consumer for any costs which might result from such termination;
10) information concerning how maintenance and repairs of the building and its administration and management are arranged, including whether and how consumers may influence and participate in the decisions regarding these issues;
11) information concerning whether or not it is possible to join a system for the intermediation of the contractual rights, information concerning the system and an indication of costs related to the intermediation through this system;
12) indication of the language available for communication with the trader in relation to the contract, for instance in relation to management board decisions, increase of costs and the handling of queries and complaints;
13) the possibility for out-of-court dispute resolution, if such possibility exists.
(2) If the right of use concerns a building which is being designed or is under construction, the trader shall set out the following information in addition to the description specified in subsections (1) and (11) of this section:
1) the state of completion of the building and the utilities services which will render the building fully operational, e.g. gas, electricity, water, telephone connections, and of any such facilities, which the consumer has the right to use;
2) the date of completion of the building and the utilities services rendering it fully operation, e.g. gas, electricity, water, telephone connections, and a reasonable estimate of the date of completion of any such facilities, which the consumer has the right to use;
3) the number of the building permit and the name and address of the administrative agency which exercises supervision over the building;
4) a guarantee regarding completion of the building or a guarantee regarding reimbursement of any payment made if the building is not completed and, where appropriate, the conditions governing the operation of such guarantees.
(21) In good time before the consumer enters into a long-term holiday product contract or makes a binding declaration of intent, the trader shall submit to the consumer on a durable medium which is easily accessible to the consumer in a clear and comprehensible manner and free of charge the following information:
1) name, address and legal status of the trader which is a party to the contract;
2) short description of the long-term holiday product contract;
3) exact nature and content of the right;
4) exact period within which the right which is the subject of the contract may be exercised and, if necessary, its duration;
5) date on which the consumer may start to exercise the contractual right;
6) fee to be paid by the consumer for acquiring the right, including any recurring costs the consumer can expect to incur resulting from the right of the consumer to obtain access to the building, travel and any other related products or services as specified in the contract;
7) equal amounts of instalments of the fee for each year of the length of the contract and the dates on which they are due to be paid;
8) information on that after the first year the subsequent amounts may be adjusted by agreement of the parties to ensure that the real value of those instalments is maintained, for instance to take account of inflation;
9) outline of additional obligatory costs imposed under the contract, e.g. annual fees, including type of costs and indication of amounts;
10) summary of key services available to the consumer, e.g. discounted hotel stays and flights, etc.;
11) information concerning whether the cost of using key services are included in the costs indicated in clause 6) of this subsection;
12) specification of what is included in the costs indicated in clause 6) of this subsection and what has to be paid for, if the cost of using the key services are not included in the costs indicated in clause 6) of this subsection;
13) the information specified in clauses (1) 16) to 20) of this section.
(22) In addition to the information specified in subsection (21) of this section, the trader shall also present to the consumer the following information:
1) an appropriate and correct description of discounts available for future bookings, illustrated by a set of examples of recent offers;
2) information concerning the restrictions on the consumer’s ability to exercise the rights, such as limited availability or offers provided on a first-come-first-served basis, and time limits on particular promotions;
3) the information specified in clauses (11) 8), 9) and 13) of this section;
4) indication of the language available for communication with the trader in relation to the contract, for instance in relation to the handling of queries and complaints.
(23) In good time before the consumer enters into an agency agreement or makes a binding declaration of intent, the trader shall submit to the consumer, on a durable medium which is easily accessible to the consumer, in a clear and comprehensible manner and free of charge the following information:
1) name, address and legal status of the trader which is a party to the contract;
2) short description of the service, e.g. concerning marketing;
3) duration of the contract;
4) charge to be paid by the consumer for acquiring the services;
5) outline of additional obligatory costs imposed under the contract, e.g. local taxes, notary fees, advertising expenses, including type of costs and indication of amounts;
6) the information specified in clauses (1) 16), 17), 19) and 20) of this section;
7) prohibition of advance payments until the entry into of the contract intermediated or expiry of the agency agreement in any other manner according to which it is explained that the prohibition concerns any payments, provision of guarantees, explicit acknowledgement of debt and performance of other such transactions or acts, and it includes not only payment to the intermediaries, but also to third parties.
(24) In addition to the information specified in subsection (23) of the section, an intermediary shall also present to the consumer the information specified in clauses (11) 9) and 13) and clause (22) 4) of this section.
(25) In good time before the consumer enters into an exchange system contract or makes a binding declaration of intent, the trader shall submit to the consumer, on a durable medium which is easily accessible to the consumer, in a clear and comprehensible manner and free of charge the following information:
1) name, address and legal status of the trader which is a party to the contract;
2) short description of the right;
3) exact nature and content of the right;
4) exact period within which the right which is the subject of the contract may be exercised and, if necessary, its duration;
5) date on which the consumer may start to exercise the contractual right;
6) charge to be paid by the consumer for the exchange membership fees;
7) outline of additional obligatory costs imposed under the contract, e.g. renewal fees, other recurrent fees, levies, local taxes, including type of costs and indication of amounts;
8) summary of key services available to the consumer;
9) information concerning whether the cost of using the services are included in the costs specified in clause 7) of this subsection;
10) specification of what is included in the costs indicated in clause 7) of this subsection and what has to be paid for, including type of costs and indication of amounts, e.g. an estimate of the amount to be paid by the consumer for individual exchange transactions, including all additional charges;
11) information specified in clause (1) 17) of this section and information stating that in the cases where the exchange system contract is offered at the same time with entry into the contract relating to the purchase of the right to use the building on a timeshare basis, only a single withdrawal period shall apply to both contracts;
12) the information specified in clauses (1) 16), 18), 19) and 20) of this section.
(26) In addition to the information specified in subsection (25) of this section, the trader shall also present to the consumer the following information:
1) explanation of how the exchange system works, including the possibilities and modalities for granting the use on timeshare basis, an indication of the value allotted to the consumer’s timeshare in the exchange system and examples of specific possibilities for granting the use;
2) an indication of the number of resorts available and the number of members in the exchange system, including all limitations on the availability of the building selected by the consumer, for example, as the result of peak periods of demand, the potential need to book a long time in advance, and indications of any restrictions on the choice resulting from the timeshare rights deposited into the exchange system by the consumer;
3) a brief and sufficient description of the immovables and their location, or a sufficient description of the building and the facilities attached to it, if the object of the contract is not an immovable, and a description of where the consumer can obtain further information;
4) information on the obligation of the trader to provide details before the grant of use is arranged in respect of the grant of use, and of any additional charges for which the consumer is liable in respect of the exchange;
5) the information specified in clauses (11) 8) and 9) of this section;
6) the information specified in subsection clause (22) 4) of this section.
(27) The information specified in subsections (1), (21), (23) and (25) of this section shall be presented to the consumer according to the standard information form set out in Annexes I, II, III and IV to Directive 2008/122/EC of the European Parliament and of the Council on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts (OJ L 33, 03.02.2009, pp. 10-30). The trader may use the applicable standard information form for submission of the information specified in subsections (11), (2), (22), (24) and (26) of this section. If the information specified in subsections (11), (2), (22), (24) and (26) of this section is not submitted to the consumer on a standard information form, the standard information form shall refer to the place where the respective information may be accessed.
(3) A trader may change the information contained in the precontractual information before entry into a contract only if this is necessary due to force majeure circumstances. The data contained in the precontractual information may be changed by agreement of the parties. These changes shall be communicated to the consumer on a durable medium easily accessible to the consumer before the contract is entered into.
(4) Any advertising referring to the right to use a building on a timeshare basis, long-term holiday product contract, exchange system and the intermediation thereof shall always indicate the possibility to access the precontractual information specified in subsections (1) to (26) of this section and the place at which the precontractual information may be accessed.
(41) Where a contract relating to the purchase of the right to use buildings on a timeshare basis, long-term holiday product contract, exchange system contract or agency agreement is to be offered to a consumer at a promotion or sales event, the trader shall clearly indicate the commercial purpose and the nature of the event in the invitation. The information specified in subsections (1) to (26) of this section shall be accessible by the consumer according to the type of the contract offered during the whole promotion or sales event.
(42) A right to use a building on a timeshare basis and a long-term holiday product shall not be defined as an investment product or service in any advertising or offer.
(5) Before the entry into the contract, the trader shall explicitly draw the consumer’s attention to the existence of the right of withdrawal, the length of the withdrawal period referred to in § 383 of this Act, and the ban on advance payments during the withdrawal period referred to in § 385 of this Act.
(6) Code of conduct means a set of rules or agreement not imposed by legislation, which describes the activities of the trader having joined it in certain economic of professional activities and which the trader undertakes to comply with.
[RT I, 04.02.2011, 2 – entry into force 23.02.2011]
(7) The provisions on the obligation to provide precontractual information specified in subsection 14 (2) and § 141 of this Act shall not apply to preparations for entry into contracts relating to the purchase of rights to use immovable properties on a timeshare basis, long-term holiday product contracts exchange system contracts or agency agreements.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
- 381. Requirements for contracts
(1) A contract relating to the purchase of the right to use the building on a timeshare basis, long-term holiday product contract, exchange system contract and agency agreement shall be entered into in writing unless more stringent requirements for the format are provided by law. The contract or a copy of the contract shall be given to the consumer immediately after the entry into thereof.
(2) Information contained in the precontractual information specified in § 380 of this Act shall form a part of the contract. In addition to the information specified in subsections 380 (1) and (2) of this Act in the case of a contract relating to the purchase of the right to use the building on a timeshare basis, information specified in subsections 380 (21) and (22) of this Act in the case of a long-term holiday product contract, information specified in subsections 380 (23) and (24) of this Act in the case of an agency agreement, information specified in subsections 380 (25) and (26) of this Act in the case of an exchange system contract, the contract shall also contain the following information:
1) the name, address and signature of the contracting parties;
2) the date and place of entry into the contract.
(3) If the information contained in the precontractual information has been changed by agreement of the parties or due to force majeure for the purposes of subsection 380 (3) of this Act, the contract shall explicitly refer to the amendment.
(4) The consumer shall sign separately the contractual clauses which contain the provisions of subsection 380 (5) of this Act. The contract shall include a standard form for right of withdrawal intended to facilitate the exercise of the right of withdrawal.
(5) The standard form for right of withdrawal shall be established by a regulation of the minister responsible for the area.
[RT I, 04.02.2011, 2 – entry into force 23.02.2011]
- 382. Language of precontractual information and contract
(1) The precontractual information provided for in § 380 and the contracts provided for in § 381 of this Act shall be prepared, as chosen by the consumer, in one of the following languages:
1) Estonian;
2) the language of another member state of the European Union which is the state of residence of the consumer;
3) the language of this member state of the European Union of which the consumer is a citizen.
[RT I, 04.02.2011, 2 – entry into force 23.02.2011]
(2) In the case of a contract relating to the purchase of the right to use the building on a timeshare basis, the object of which is one specific immovable and the contract is drawn up in a language other than that of the state where the building is situated, the trader shall provide an authenticated translation of the contract to the consumer in the language of the state in which the building is situated.
(3) If the state of residence of the consumer is Estonia, the trader shall provide a translation of the contract in Estonian to the consumer.
- 383. Right of consumer to withdraw
(1) A consumer may withdraw from a contract within 14 days as of the date of entry into the contract. If the consumer receives the contract or a copy of the contract later than specified in the first sentence of this subsection, the withdrawal period shall start from the day the consumer receives it. The provisions of this section concerning contracts also apply to preliminary contracts.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
(2) If the consumer is provided the standard form for right of withdrawal specified in the second sentence of subsection 381 (4) of this Act in a filled in form on a durable medium within one year from the day when the withdrawal period specified in subsection (1) of this section starts, the withdrawal period is deemed to start on the day when the consumer receives such standard form.
[RT I, 04.02.2011, 2 – entry into force 23.02.2011]
(21) The consumer may withdraw from the contract within one year and fourteen days from the day when the withdrawal period specified in subsection (1) of this section starts if the trader has failed to submit in a filled in form the standard form for right of withdrawal specified in subsection 381 (5) of this Act on a durable medium to the consumer.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
(3) If the information specified in subsections 380 (1) to (26) of this Act is submitted to the consumer on a durable medium within three months from the day when the withdrawal period specified in subsection (1) of this section start, the withdrawal period is deemed to start on the day when such information is given to the consumer.
[RT I, 04.02.2011, 2 – entry into force 23.02.2011]
(31) The consumer may withdraw from the contract within three months and fourteen days from the day when the withdrawal period specified in subsection (1) of this section starts if the trader has failed to submit the information specified in subsections 380 (1) to (26) of this Act on a durable medium to the consumer.
[RT I, 04.02.2011, 2 – entry into force 23.02.2011]
(32) Contract terms which impede the right of withdrawal from being exercised, in particular agreements pursuant to which withdrawal is bound to payment of earnest money or a contractual penalty, are void.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
(4) If a consumer withdraws from a contract, the trader shall not demand a charge for the services provided or the use of the building or any other expenses related to the contract.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
(5) The consumer’s withdrawal application shall be in a format which can be reproduced in writing. The consumer may use the standard form of application for withdrawal specified in subsection 381 (5) of this Act for submitting a standard for right of withdrawal.
[RT I, 04.02.2011, 2 – entry into force 23.02.2011]
(6) The deadline for withdrawal is deemed to have been observed by the consumer if the consumer has sent a respective notice to the supplier within the withdrawal period.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
- 384. Effect of withdrawal on consumer credit contract
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
(1) If the amount payable on the basis of the contract is fully or partly covered by the trader or a third person by the credit granted based on an agreement between the third person and the trader and the contract is a contract economically linked to a consumer credit contract for the purposes of § 414 of this Act, the consumer is deemed to have also withdrawn, in the case of withdrawal from the contract under the conditions provided for in § 383 of this Act, from the consumer credit contract and collateral contracts linked thereto.
(2) In the case specified in subsection (1) of this section, a consumer shall not be required to pay interest or other expenses in the case of withdrawal from a consumer credit contract.
[RT I, 04.02.2011, 2 – entry into force 23.02.2011]
(3) If credit is provided by a third party and the amount of the credit has already been paid to the trader, the rights and obligations of the trader with regard to the consumer transfer to the creditor in the case of withdrawal by the consumer.
- 3841. Effect of withdrawal to related contract
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
(1) If the consumer exercises the right of withdrawal specified in § 383 of this Act with regard to the contract relating to the purchase of the right to use a building on a timeshare basis or long-term holiday product contract, the consumer is deemed to have also withdrawn from the contract linked to the contract relating to the purchase of the right to use the building on a timeshare basis or long-term holiday product contract, which the consumer has entered into with the trader or the third person based on an agreement between the third person and the trader.
(2) In the case specified in subsection (1) of this section, the trader or the third person shall not demand payment by the consumer for any expenses for withdrawal from a contract linked to the contract relating to the purchase of the right to use the building on a timeshare basis or long-term holiday product contract.
- 385. Prohibition on demanding and accepting advance payments
(1) In the case of a contract relating to the purchase of the right to use a building on a timeshare basis, long-term holiday product contract and exchange system contract, the trader or the third person is prohibited to demand and accept from a consumer any payments, provision of guarantees, explicit acknowledgement of debt and performance of other such transactions or acts prior to the expiry of the withdrawal period specified in § 383 of this Act.
(2) In the case of an agency agreement, the trader or the third person is prohibited to demand or accept from the consumer any payments, provision of guarantees, explicit acknowledgement of debt and performance of other such transactions or acts before the actual entry into the contract intermediated or expiry of the agency agreement.
- 3851. Specifications for long-term holiday product contracts
(1) In the case of long-term holiday product contracts, the payment shall be in instalments of equal value for each year of the duration of the contract. The trader shall send a corresponding notice to the consumer on a durable medium at least 14 days before the due date for the payment of the instalment.
(2) From the second instalment period onwards, the consumer has the right to cancel the contract without incurring any expenses by giving notice to the trader within fourteen days as of receiving the last notice specified in subsection (1) of this section.
- 386. Application of provisions
The provisions of this Chapter apply to a contract entered into with a consumer residing in Estonia or in another member state of the European Union if the immovable, building or any part thereof which is the object of the contract is located in Estonia or if the trader pursues commercial or professional activities in Estonia or the contract is entered into as a result of a public tender, advertising or other similar economic activities in Estonia, or if the contract is essentially linked to the territory of Estonia for any other reason, regardless of the state which state’s law applies to the contract.
- 387. Prohibition on violation of provisions
A person or institution provided by law may, pursuant to the procedure provided by law, demand that a supplier who has violated the provisions provided in this Chapter concerning transfers terminate the violation and avoid any such violation.
[RT I, 31.12.2013, 1 – entry into force 13.06.2014]
- 388. Mandatory nature of provisions
Agreements which derogate from the provisions of this Chapter to the detriment of the consumer are void.