Case law

  • Case Details
    • National ID: 11522
    • Member State: Italy
    • Common Name:Tiziana Stella v. Soc. Moon Light
    • Decision type: Other
    • Decision date: 04/11/1995
    • Court: Corte di cassazione (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Doorstep Selling Directive, Article 1, 1.
  • Headnote
    1. The jurisdiction is determined having regard to the agreement between the parties, unless it has been dissimulated under a contract with a different denomination.
    2. In this case, the dissimulated contract is a door-to-door sale agreement and, consequently, it follows the provisions of the Law 15 January 1992, n. 50.
    3. The article 12 of the said Law is mandatory while stating the jurisdiction for the consumer contracts negotiated away from business premises.
  • Facts
    Mrs. Tiziana Stella filed an action before the Pretore di Lecce against the company Moon Light s.a.s.
    As for the plaintiff, a seller of Moon Light s.a.s. has induced her to agree on a standard contract of sale of goods and some clauses of that agreement were not in compliance with the mandatory provisions of the Law 15 January 1992, n. 50.
    Moreover, Mrs. Tiziana Stella affirmed that she has tried to exercise the right of cancellation (i.e. the consumer has the right to renounce the effects of her undertaking, by sending notice in accordance with the conditions of the said Law) and that the Moon Light s.a.s. has continued to send her the goods.
    Given that the contract expressly provides that any controversy between the parties should be decided by the Pretore of Pisa, the Pretore di Lecce refused to take a decision.
    Mrs. Tiziana Stella brought the action before the Corte di cassazione, asking the judges to determine the jurisdiction for this case (i.e. “regolamento di giurisdizione”).
  • Legal issue
    The case in question concerns the qualification of the agreement stipulated by the parties, Mrs. Tiziana Stella and Moon Light s.a.s.
    The Corte di cassazione stated that the denomination “contract for non-professional sales intermediation” (i.e. “contratto di intermediazione non professionale alle vendite”) dissimulates a door-to-door sale contract.
    Consequently, the jurisdiction has to be determined having in consideration the door-to-door sale contract and not the other agreement with a different denomination
    Given that the door-to-door sale contract is regulated by the provisions of the Law 15 January 1992, n. 50, the agreement between Moon Light s.a.s. and Mrs. Tiziana Stella is governed by the provisions of such Law.
    The Law 15 January 1992, n. 50 has implemented in the Italian legal system the Council Directive 85/577/EEC of 20 December 1985 (to protect the consumer in respect of contracts negotiated away from business premises).
    As for the article 12 of the said Law, the judge of the place where the consumer is resident or domiciled is competent to decide the cases concerning the contracts negotiated away from business premises.
    The Corte di cassazione has concluded that the provision of the article 12 of the Law 15 January 1992, n. 50 is mandatory and that consequently it may not be derogated by the parties.
  • Decision

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