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Case Details

Case Details
National ID no. 10285/2002
Member State Italy
Common Name Papagno v. Enel
Decision type Other
Decision date 16/07/2002
Court Corte di cassazione (Supreme court)
Subject
Plaintiff
Defendant
Keywords

Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 3, 3.

1. The requirement of the specific approval in written form under Art. 1341 c.c., for the clause of derogation of Court competence may be fulfilled even by signing under the reference to the number or the heading of such a clause, because the signatory is allowed through that reference to know the content of that clause and it is presumed that such clause has been adequately illustrated to him, even if his signature is under the reference to other onerous contractual terms. (The case is relating to a contract of energy supply undertaken before the implementation of the rules under Art. 1469 bis c.c. ff.)
The company Enel sued Papagno Umberto before the Tribunale di Bari to require to the Court the payment of lire 54.201.642 in consequence of his not fulfilment in the obligation to pay for the energy consumption from May 1982 to July 1984. The Tribunale di Bari declared Pagano Umberto to pay that sum, other than legal interest and expenses. Papagno Umberto appealed that decision but the Court of Appeal of Bari confirmed the decision of the Tribunale di Bari. In particular, for what concerns the interesting issue of this abstract, the Court of Appeal declared that the clause of derogation of the Court competence had to be considered effective, even if preprint, because it was separate and in autonomous section from the general conditions of contract and, consequently, the need of protection of the weak contract party under Art. 1341 c.c. had been satisfied.
Papagno Umberto has brought an action before the Corte di cassazione asking for the overturn of the sentence of the Court of Appeal.
The Supreme Court declared that the requirement of the specific approval in written form under Art. 1341 c.c., for the derogation of Court competence may be fulfilled even by signing under the reference to the number or the heading of such a clause, because the signatory is allowed through that reference to know the content of that clause and it is presumed that such clause has been adequately illustrated to him, even if his signature is under the reference to other onerous contractual terms. Moreover, contrary to the request of Pagano Umberto and according to Corte di Cassazione, 24.07.2001, no. 10086, the Court declared that the discipline on the unfair terms (article 1469-bis and followings of the Italian Civil Code) does not apply to the consumers’ contracts that have been enforced before its adoption in the Italian legal system.
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