Case law

  • Case Details
    • National ID: link
    • Member State: Italy
    • Common Name:Lavopa v. Soc. Inditel S.p.A.
    • Decision type: Other
    • Decision date: 31/08/2001
    • Court: Tribunale
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Doorstep Selling Directive, Article 2
  • Headnote
    1. The notion of consumer under the Law 15 January 1992, n. 50 (to protect the consumer in respect of contracts negotiated away from business premises) should be determined having regard to the objective criteria. Thus, the subjective considerations of the parties, unless they have been expressly indicated the contract, are not relevant for this purpose.
    The article 10 of the Law 15 January 1992, n. 50 is a mandatory provision and thus it may not be derogated by the parties.
    When the good or service indicated in the contract could serve both for personal and professional use, in order to determine the prevalent use, the Court should decide by considering the circumstances of the case, for instance: the kind of the good and/or the service indicated in the contract and the nature of the agreement.
  • Facts
    Mr. Lavopa sued before the Tribunale di Bari the company Inditel S.p.A. in order to obtain a declaration that he has validly exercised the right of cancellation from the contract of sale of hardware and software products.
    Mr. Lavopa has exercised such right after he has discovered that the price indicated in the contract was different from the one he agreed on.
    In the contract, the plaintiff affirmed that he buys such products for professional use only and that, as a consequence, the right of cancellation under the Law 15 January 1992, n. 50 did not apply.
    Mr. Lavopa asked to the Tribunale di Bari to declare that, notwithstanding the existence of such clause, the 15 January 1992, n. 50 applies in the case and thus that he has correctly exercised the right of cancellation.
  • Legal issue
    The controversy was about the interpretation of the article 10 of the Law 15 January 1992, n. 50 and, particularly, about the possibility to derogate it.
    The Court also defined the notion of consumer and trader for the purposes of the Law that protects the consumer in respect of contracts negotiated away from business premises.
    On the first point, the Court stated that the article 10 is mandatory and thus that any clause of derogation should be considered as null and void.
    Secondly, the Tribunale di Bari confirmed that the notion of consumer in the contracts negotiated away from business premises should be defined having regard to the objective criteria and that the subjective considerations of the parties are not relevant for this purpose.
    Moreover, when the good or service indicated in the contract could serve both for personal and professional use, the Court should decide by considering the circumstances, for instance: the kind of good or service in question and the nature of the agreement.
  • Decision

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