The Italian legislation on unfair terms in consumer contracts is based on the Council Directive 93/13/EEC of 5th April 1993.
The discipline concerning the unfair terms in consumer contracts has been implemented in Italy by the Law of 6 February 1996 no. 52 “Disposizioni per l'adempimento di obblighi derivanti dall'appartenenza dell'Italia alle Comunità europee” (Legge Comunitaria 1994).
The Law has introduced the articles from 1469-bis to 1469-sexies in the Italian Civil Code. In particular, the definition of consumer pursuant to Council Directive n. 93/13/EC concerning unfair terms in consumer contracts (art.2 lett.b), has been literally reproduced in art. 1469-bis of the Italian Civil Code.
In the article 1469-bis, the term consumer means “any natural person who is acting for purposes which are outside his trade, business or profession which he possibly carries out”.
Moreover, these provisions provide for the ineffectiveness of terms considered as vexatious (art.1469-quinquies of the Italian Civil Code) as well as for the action for an injunction for the protection of consumers (art. 1469-sexies of the Italian Civil Code).
In this decision, the Corte di Appello di Venezia has concluded that the discipline on unfair terms in consumer contracts only apply to the contracts concluded after the 31st December 1994.
The ratio of this statement evidently stays in the respect for the general principle that “pacta sunt servanda”. In our case, the contract of fideiussione has been stipulated before that date and thus the discipline is not applicable. The fideiussore is one who personally binds himself before the creditor, guaranteeing the fulfilment of another person’s obligation (not necessarily a monetary debt) and so making himself liable with all his goods according to the general rule of the article 2740 of the Italian Civil Code.