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Case Details

Case Details
National ID 14669
Member State Italy
Common Name Abrescia v. Consultur S.r.l.
Decision type Other
Decision date 01/10/2003
Court Corte di cassazione (Supreme court)
Subject
Plaintiff
Defendant
Keywords

Unfair Contract Terms Directive, ANNEX I, 1.

1. The article 1469-bis, paragraph 3, no. 19, of the Italian Civil Code provides for a presumption of unfairness of the clauses establishing a jurisdiction different from those of the judge where the consumer is resident or domiciled.
This provision has introduced in the Italian legal system a case of exclusive jurisdiction that may be derogated by the parties.
Mrs. Chiara Abrescia has stipulated a preliminary contract with Consultur S.r.l. to purchase a quota of co-ownership of a property based in Mezzana.
The contract has been concluded in the place of residence of the purchaser and it provides for a clause of choice of jurisdiction upon which the judge of Milan is the only competent for any controversy arising from the agreement.
Mrs. Chiara Abrescia sued the company before the Tribunale di Bari, asking the judge to declare that she has legally refused to conclude the contract. As to the plaintiff, Consultur S.r.l. asked her to pay additional sums not indicated in the preliminary contract.
The Tribunale di Bari agreed with the argument of the company that has asked the judge to declare that, accordingly with the clause of choice of jurisdiction, he was not competent for the case. Mrs. Abrescia has brought the case before the Corte di cassazione asking the Court to determine the jurisdiction (i.e. regolamento di giurisdizione).
In the decision, the Sezioni Unite of the Corte di cassazione have solved the contrast between the different interpretations of the article 1469-bis, paragraph 3, no. 19, of the Italian Civil Code on the jurisdiction in consumers’ contracts.
The judges of the Supreme Court have stated that the article 1469-bis, paragraph 3, no. 19, of the Italian Civil Code provides for a presumption of unfairness of the clause establishing a jurisdiction different from those of the judge where the consumer is resident or domiciled.
On such basis, the Supreme Court concluded that this provision has introduced in the Italian legal system a case of exclusive jurisdiction and that this jurisdiction may be derogated by the parties.
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