In this decision, the Corte di appello di Milano has followed the previous jurisprudence upon which the article 1469-bis and followings of the Italian Civil Code are not applicable to the consumers’ contracts entered into force before the adoption of such articles.
On the contrary, the judges have clarified that the Directive 93/13/CEE is self-executing and that it directly applies to the consumers’ contracts agreed after its adoption.
With specific reference to the present case, the Corte di appello di Milano observes that the personal guarantee (i.e. fideiussione) of the quota holder for the benefit of the company does not fall within the scope of the article 1469-bis and followings of the Italian Civil Code.
The fideiussione is a typical instrument, well known in most law systems to provide personal securities for the fulfilment of an obligation by a third person’s promise to carry out the obligation of the principal debtor.
According to the article 1936 of the Italian Civil Code, the fideiussore (from the latin fideiubeo = to make oneself guarantor) 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 article 2740of the Italian Civil Code.
Accordingly with the case-law of the Corte di cassazione, the discipline on unfair terms in consumer contracts applies to the fideiussione (a) when the guarantee is ancillary to an agreement for the selling of goods and services and (b) the principal debtor is a consumer.