Case law

  • Case Details
    • National ID: n. 29186
    • Member State: Italy
    • Common Name:Soc. Safari Pellicce v. Balotta
    • Decision type: Other
    • Decision date: 12/12/2008
    • Court: Corte di cassazione (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Doorstep Selling Directive, Article 5
  • Headnote
    In the case of a contract which object is the proposal of providing a tailored garment, for which the Legislative decree no. 185 of 22 May 1999 excludes the statutory right of withdrawal (Article 5, para 3, lit. c), the right of withdrawal is legitimately exercised by the purchaser if, by the express will of the parties, the withdrawal clause was included at the bottom of the page of the purchase proposal.
  • Facts
    By judgment of 17 March to 25 March 2004 the Court of Vibo Valentia, in enforcement of Legislative Decree 50/92 in respect of contracts negotiated away from business premises, accepted the appeal lodged by B.A. against the decision of the magistrate (“giudice di pace”) of Pizzo of 2 February 2002 and stated that the withdrawal of the pur-chaser - in respect of the contract relating to proposal of providing a mink coat – was legitimately exercised, declaring the contract dissolved and ordering the Pellicce Safari srl (Ltd.) to return the goods to the claimant. Reasons (summary of the main lines of reasoning of the court, in particular illustration how provision of the EU-Directives and/or their transposition into national laws are applied)
    The third ground of appeal pointed to violation and misapplication of the provisions of the Legislative decree no. 50 of 1992.
    According to the opinion of the claiming company, the legal classification given by the Court was not correct. The company notes that in this case the provisions of Legislative decree no. 50 of 1995 should not have been applied, but the following Legislative decree no. 185 of 1999 which by specifically regulating the hypothesis of made-to-measure tailor (article 5, para 3, lit. c) denies the possibility of exercising the right of withdrawal.
    The B. not only had adequately controlled, but also gave specific instructions regarding the mink coat, which was object of the sales contract, to be personalised.
    The performed made-to-measure resulted in an irreversible operation of adaptation to the characteristics of the customer, so that the coat was changed into a not "marketable" coat for the standard size, for which the fur was planned.

    The circumstance that the exercise of the right of withdrawal in the commission contract, cited by B., was should be considered completely irrelevant (in fact, this provision applied only to the sale of standard items that the company regularly advertises on TV, and therefore was not entitled to invoke in this case, since it was a personalised coat). The appeal to the Supreme Court is without merit because the client had already checked the coat already tailored in B’s own domicile under the instructions that the mink coat was to be tailored to B’s needs.
    The Court of Appeal explained the reasons why the Legislative decree of 1992 should be applied instead of the Legislative decree no. 185 of 1999, which was invoked by the claiming part.
    Even assuming, however, the application of the Leg. decree of 1999, it should necessarily be concluded that the right of withdrawal had been lawfully exercised by the purchaser, in consideration of the willingness expressed by the parties, who had wanted the inclusion of the clause at the bottom of the page of the purchase proposal, which allowed the the procedures for withdrawal under Leg. decree no. 50 of 1992, Art. 4 et seq.
  • Legal issue
    The third ground of appeal pointed to violation and misapplication of the provisions of the Legislative decree no. 50 of 1992.
    According to the opinion of the claiming company, the legal classification given by the Court was not correct. The company notes that in this case the provisions of Legislative decree no. 50 of 1995 should not have been applied, but the following Legislative decree no. 185 of 1999 which by specifically regulating the hypothesis of made-to-measure tailor (article 5, para 3, lit. c) denies the possibility of exercising the right of withdrawal.
    The B. not only had adequately controlled, but also gave specific instructions regarding the mink coat, which was object of the sales contract, to be personalised.
    The performed made-to-measure resulted in an irreversible operation of adaptation to the characteristics of the customer, so that the coat was changed into a not "marketable" coat for the standard size, for which the fur was planned.

    The circumstance that the exercise of the right of withdrawal in the commission contract, cited by B., was should be considered completely irrelevant (in fact, this provision applied only to the sale of standard items that the company regularly advertises on TV, and therefore was not entitled to invoke in this case, since it was a personalised coat). The appeal to the Supreme Court is without merit because the client had already checked the coat already tailored in B’s own domicile under the instructions that the mink coat was to be tailored to B’s needs.
    The Court of Appeal explained the reasons why the Legislative decree of 1992 should be applied instead of the Legislative decree no. 185 of 1999, which was invoked by the claiming part.
    Even assuming, however, the application of the Leg. decree of 1999, it should necessarily be concluded that the right of withdrawal had been lawfully exercised by the purchaser, in consideration of the willingness expressed by the parties, who had wanted the inclusion of the clause at the bottom of the page of the purchase proposal, which allowed the the procedures for withdrawal under Leg. decree no. 50 of 1992, Art. 4 et seq.
  • Decision

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