Giurisprudenza

  • Dettagli del caso
    • ID nazionale: Provvedimento n. 24995
    • Stato membro: Italia
    • Nome comune:CV57 - GABETTI-CONTRATTI SETTORE IMMOBILIARE
    • Tipo di decisione: Decisione amministrativa di primo grado
    • Data della decisione: 25/06/2014
    • Organo giurisdizionale: Autorità Garante della Concorrenza e del Mercato (AGCM)
    • Oggetto:
    • Attore: Codici and Altroconsumo
    • Convenuto: Gabetti
    • Parole chiave: penalties, unfair terms
  • Articoli della direttiva
    Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 3, 2. Unfair Contract Terms Directive, ANNEX I, 1., (e) Unfair Contract Terms Directive, ANNEX I, 1., (q)
  • Nota introduttiva
    (1) The combination of a clause on exclusivity and a clause on the duration of the appointment referring to the mandate to sell or rent, (that provide for the tacit renewal of the assignment), is unfair since it results in limiting the contractual freedom of consumers toward third parties, since they have no possibility to choose between the termination of the assignment and its renewal nor between tacit renewal with or without exclusivity. In addition, there is no possiblity to withdraw without penalty. This results in the unfairness of such clauses according to article 33, paragraph 2, letter t) of the Consumer Code. A redraft of the clause providing for the possibility for the consumer to choose between the contract renewal with or without exclusivity, removes the unfairness of the clause.

    (2) A clause providing for the payment, by the subject who conferred the assignment, of the same amount of the commission stipulated for the closing of the deal in case the consumer do not accept proposals to buy in conformity with the assignment is unfair since it limits the contractual freedom of the consumer and his ability to oppose exceptions to the mediator in relation to the consumer refusal for a legitimate reason, for example in order for the consumer to verify the quality of the deal proposed; it is also unfair since it provides for the payment of an amount equal to the entire closing of the deal. This results in the unfairness of such clause according to article 33, paragraph 2, letter t). article 34, paragraph 2 and article 35, paragraph 1 of the Consumer Code. A redraft of the clause providing for the deletion of the requirement to pay the commission in case of a consumer legitimate reason in relation to the reliability of the deal and unrelated to his personal sphere may remove only partially its unfair effects since the modification won't remove the consumer requirement to pay an amount equal to the entire commission in case of non acceptance of the compliance proposal.

    (3) A clause providing for the application of a penalty (with no predefined amount) for the consumer refusal to let potential buyers identified by the mediator visit the property is unfair since it limits the consumer contractual freedom as well as its ability to oppose exceptions to the mediator in relation to the refusal due to legitimate reasons, accoridng to the principle of good faith. This results in the unfairness of the clause according to article 33, paragraph 2, letter t) of the Consumer Code for significant disproportion of the rights and obligations established in the contract. A redraft of the clause excluding from the clause occasional refusal to let potential buyers visit the property may only partially remove its unfair effect since the modification won't refer to non-occasional refusals.

    (4) A clause providing for the irrevocability of the proposal made by the potential buyer without indication of a term within which the mediator is required to commuincate it to the seller is unfair since it results in a disproportion in favour of the mediator that has the possibility to retain said proposal for a certain amount of time without informing the seller in order to wait for other potentially higher proposals and to receive a higher commission. This results in the unfairness of the clause according to article 33, paragraph 2, letter t) of the Consumer Code for limiting the consumer freedom. A redraft of the clause by the plaintiff expressely providing for the mediator obligation to promptly inform the seller about the proposal may remove the unfairness of the clause.

  • Fatti
    The proceeding was initiated as a result of reports received by several consumer associations. The Authority has examined the standard contract forms used by agents with clients for their appointment having as subject the mediation activity for the sale or lease of properties as well as for the formulation and collection of the irrevocable offer of purchase or lease of buildings.
  • Questione giuridica
    (1) Is the combination of the clause providing for the tacit renewal of the assignment with the one relating to the exclusivity limiting the contractual freedom of consumers toward third parties and thus unfair?

    (2) Is the clause providing for the payment, by the subject who conferred the assignment, of the same amount of the commission stipulated for the closing of the deal in case the consumer do not accept proposals to buy in conformity with the assignment limiting the contractual freedom of the consumer and his ability to oppose exceptions to the mediator, thus unfair?

    (3) Is the clause providing for the application of a penalty for the consumer refusal to let potential buyers identified by the mediator visit the property contrary to good faith and unfair?

    (4) Is the clause providing for the irrevocability of the proposal made by the potential buyer without indication of a term within which the mediator is required to commuincate it to the seller creating a disproportionate imbalance in favour of the mediator, and thus unfair?

  • Decisione

    The Antitrust Authority has ascertained the unfair nature of certain clauses against consumers present in the contracts used by Gabetti, one of the major operators in the real estate brokerage sector. The Antitrust Authority also ascertained the partial or total fairness of said clauses subsequent to a new redraft by the plaintiff:

    (1) The clauses "Exclusivity" and "Duration of the appointment", referring to the mandate to sell or rent, provides for the tacit renewal of the assignment, that in combination with the exclusivity, results in limiting the contractual freedom of consumers toward third parties, since they have no possibility to choose between the termination of the assignment and its renewal nor between tacit renewal with or without exclusivity. In addition, there is no possiblity to withdraw without penalty. This results in the unfairness of such clauses according to article 33, paragraph 2, letter t) of the Consumer Code. The redraft of the clause by the plaintiff provides for the possibility for the consumer to choose between the contract renewal with or without exclusivity, thus removing the unfairness of the clause.

    (2) The clause "Compliance proposal" of the mediation assignment provides for the payment, by the subject who conferred the assignment, of the same amount of the commission stipulated for the closing of the deal in case the consumer do not accept proposals to buy in conformity with the assignment. The clause is unfair since limit the contractual freedom of the consumer and his ability to oppose exceptions to the mediator in relation to the consumer refusal for a legitimate reason, for example in order for the consumer to verify the quality of the deal proposed; it is also unfair since it provides for the payment of an amount equal to the entire closing of the deal. This results in the unfairness of such clause according to article 33, paragraph 2, letter t). article 34, paragraph 2 and article 35, paragraph 1 of the Consumer Code. The redraft of the clause by the plaintiff provides for the deletion of the requirement to pay the commision in case of a consumer legitimate reason in relation to the reliability of the deal and unrelated to his personal sphere. However, since there is no modification of the clause in the part in which establish the consumer requirement to pay an amount equal to the entire commission in case of non acceptance of the compliance proposal, only part of the unfair effects of the clause are removed.

    (3) The clause "Penalties for the seller" provides for the application of a penalty (with no predefined amount) for the consumer refusal to let potential buyers identified by the mediator visit the property. The clause limits the consumer contractual freedom as well as its ability to oppose exceptions to the mediator in relation to the refusal due to legitimate reasons, accoridng to the principle of good faith. This results in the unfairness of the clause according to article 33, paragraph 2, letter t) of the Consumer Code for significant disproportion of the rights and obligations established in the contract. The redraft of the clause by the plaintiff contain several times the word "repeatedly", excluding from the clause occasional refusal to let potential buyers visit the property. However, since there is no modification of the clause in relation to non-occasional refusals, only part of the unfair effects of the clause are removed.

    (4) The clause "Time of irrevocability opf this proposal to buy" provides for the irrevocability of the proposal made by the potential buyer without indication of a term within which the mediator is required to commuincate it to the seller. Thus there is a disproportion in favour of the mediator that has the possibility to retain said proposal for a certain amount of time without informing the seller in order to wait for other potentially higher proposals and to receive a higher commission. This results in the unfairness of the clause according to article 33, paragraph 2, letter t) of the Consumer Code for limiting the consumer freedom. The redraft of the clause by the plaintiff expressely provides for the mediator obligation to promptly inform the seller about the proposal, thus removing the unfairness of the clause.

    URL: http://www.agcm.it/consumatore--delibere/consumatore-provvedimenti/open/C12560D000291394/C25E4AA22FC05D47C1257D2300503309.html

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  • Risultato
    The plaintiff's request was granted