This article was translated automatically from Italian.
Identifying unfair terms in a contract.
Unfair terms are terms which, when included in a contract, create a substantial imbalance in the contractual relationship between the parties. That is, they are unbalanced in favour of only one of the contracting parties, and to the detriment of the other.
For example, terms which limit or exclude the liability of one contracting party are unfair, as are those which grant one party alone, for instance, the right to withdraw from the contract, or to suspend its performance.
They are normally found in contracts drawn up unilaterally by one of the parties.
The typical example is that of standard-form contracts, which are drawn up and used to conclude an indefinite number of contracts, and which are usually concluded by signing pre-prepared forms or pre-printed templates.
Think, for example, of contracts in the energy, gas or insurance sectors.
The rules on unfair terms are contained in the civil code. In the case of contracts concluded between professionals or businesses and consumers, these rules are supplemented by the provisions of the Codice del Consumo (Consumer Code).
The unfairness of a term must therefore be assessed not only by its content, but also in light of the relationship between the parties. In other words, a contractual imbalance may arise from the fact that on one side there is a professional or a business, and on the other a consumer.
In that case, in addition to the rules of the civil code, the rules of the Consumer Code also apply.
Thus, in order to restore contractual balance for the consumer, as the economically weaker party, the terms that the Consumer Code deems unfair will be considered void.
However, the contract remains valid as to the remaining terms not covered by the Consumer Code. The differences are substantial, because in the case governed by the civil code, the terms are ineffective, and in order to take effect they must be expressly approved by means of the so-called double signature, or must be the subject of specific negotiation, so that the contract is not deemed to have been drawn up unilaterally.
A element common to both sets of rules is, in fact, "individual negotiation", which is considered capable of excluding the unfair nature of the terms, since the unilateral drafting of the contract no longer applies.
In contracts between professionals or businesses and consumers, however, Article 36 of the Consumer Code lists three types of term which are void even if they have been negotiated.
Consumers can also have access to further protection. By contacting consumer associations, they can obtain the so-called injunction against certain terms included in contracts drawn up unilaterally by professionals or companies.
Where there are grounds of urgency, the antitrust authority, again acting of its own motion or on a complaint, can also declare a term to be unfair.
Alessandro Langella
Founder of Pavé, Milan
He knows Milan through years of hands-on market experience, properties visited and neighbourhoods watched as they changed.
