Restrictive contract clauses within the discipline of Consumer Code
The Court of Cassation recently, on April 28, 2020, expressed a principle on restrictive contract clauses and consumer contracts according to which “in the case of contracts drawn up unilaterally by the trader, two requirements for the validity of restrictive clauses have to be met. The first requirement concerns direct knowledge of the clause derogating from the jurisdiction. Direct knowledge is shown by the specific written approval provided for by article 1341 of the Italian Civil Code. The second requirement is provided by article 34, paragraph 4, Consumer Code, according to which the restrictive clause must be included in the contract only after a specific negotiation”.
The Judges of Piazza Cavour had to decide on a matter of territorial jurisdiction. The resolution of the question gave rise to the principle of law set out above.
Mr. Alfa summoned the company Beta before the Court of Palermo in order to request that the defendant be ordered to fulfil its obligations as provided for by a contract in force between the same parties.
Beta, which was summoned to appear before the Court, objected to the existence of a clause, contained in Article 12 of the above contract, which derogated from territorial jurisdiction. This clause, specifically approved pursuant to Article 1341 of the Civil Code, provided for the exclusive jurisdiction of the Court of Cassino.
The Court of Palermo, with an order dated November 30, 2018, considered the exception proposed by Beta to be valid andstated that the clause relating to jurisdiction had to be considered valid and correctly approved in accordance with the provisions of Consumer Code.
Following the decision of the Court of Palermo, Mr. Alfa decided to file an appeal before the Court of Cassation.
The judges of the Court of Cassation considered the exception proposed by Alfa valid and declared the jurisdiction of the Court of Palermo. Consequently, they also ruled that the jurisdiction clause included in the contract signed by the parties was abusive.
The Court of Cassation justified its decision by stating the following fundamental principle: “the regulation of the general terms and conditions of contracts pursuant to Article 1341 of the Italian Civil Code is different from the regulation of restrictive clauses provided by Article 33 and subsequent articles of the Consumer Code“.
Therefore, according to the principle stated above, the judges of Piazza Cavour believe that the Court of Palermo was wrong to judge that the clause relating to jurisdiction was not abusive. The error was caused by the fact that the judges verified the conformity of the above clause exclusively with reference to Article 1341 of the Italian Civil Code, without considering other important aspects.
However, the rules provided for by the Consumer Code introduce, in addition to the requirement of specific written approval according to Article 1341 of the Italian Civil Code, another fundamental requirement for the validity of the restrictive clause. Article 34, paragraph 4 of the Consumer Code states that “clauses or elements of clauses that are the result of individual negotiations cannot be judged abusive“. In addition, the following paragraph 5 of article 34, exclusively for contracts concluded by unilateral forms, provides that the professional who ordered the contract must prove that there was a specific negotiation as provided for in paragraph 4 of article 34.
In conclusion, the following principle can be stated. In the case of contracts subject to the rules of the Consumer Code, the restrictive terms to be considered effective have to be approved in writing through a specific signature and have to be the result of a specific negotiation between the consumer and the professional.