medical liability foetus
Search Menu

Consumer jurisdiction exemption clauses and the burden of proof thereof

Medical liability: The parents must be awarded damages for economic and non-economic losses caused by erroneous information given vis-à-vis possible fetus malformations or pathologies

Whoever contravenes the prescriptions or limitations imposed by the system controller on the uses that may be made of an I.T. system will be deemed to have unlawfully gained access to such I.T. system, even if the offender had previously lawfully obtained the password thereto.

Dark Light

The Supreme Court has dealt once again with the question of which courts have – pursuant to Legislative Decree no. 206/05 (the Italian Consumer Code) – jurisdiction over consumer disputes.

There are, in fact, two cases provided for under article 63 of the Code and namely those involving so-called long-distance contracts and those involving contracts negotiated outside of commercial premises (the so-called non-derogable jurisdiction of judges of the place of residence and domicile of the consumer).

 Business to consumer contracts are dealt with in a different manner since, in such case, article 33, paragraph 2, letter u) of the Italian Consumer Code qualifies as vexatious (and, therefore, null and void) clauses that impose the jurisdiction of a court other than the one in which the consumer’s chosen place of residence or domicile is located.

The difference between the two above-described cases is that, in the former case, the criterion of jurisdiction is fixed by the law (which cannot be derogated), whereas in the latter case the legislator presumes the imposition of a court which is not that of the consumer’s place of residence or domicile to be vexatious (but such presumption may be rebutted by proof to the contrary).

With judgment no. 24370/11, the Supreme Court judges dealt with a contract entered into for the purchase of a motor vehicle (the court’s jurisdiction could be derogated in such a case, but only in the event that the other party provided proof that the contractual clause establishing a different court of jurisdiction had been individually negotiated and that, as provided for under article 33, paragraph 1 of the Italian Consumer Code, it was not the result of significant imbalances between the different parties’ contractual positions).

The particular nature of the case at hand was the fact that the plaintiff had brought an action in which the main petition was a request for the annulment of a contract for the purchase of a motor vehicle on the grounds that the plaintiff’s consent had been vitiated and the subordinate petition was that the contract should be terminated pursuant to Legislative Decree no. 206 of 2005.

The lower Court held that it had no jurisdiction over such dispute on the grounds that the criterion of the consumer’s jurisdiction could only be applied in the event that the main petition requested the granting of the remedies provided for under the Italian Consumer Code.

The Italian Supreme Court held, instead, that the so-called consumer jurisdiction arose as a result of the personal qualities of the parties involved and not as a result of the contents of the claims being submitted (thus reaffirming a consolidated body of case law and in particular Italian Supreme Court judgment nos. 14669/03, 336/04, 18743/07, 27911/08, 20718/09, 20/09 and 9922/10).

In the Supreme Court judges’ opinion, such solution was justified on two different grounds: the first being that (a) article 33, paragraph 1, letter v) of Legislative Decree no. 206 dated 2005 would not seem to place any requirement as to the type of petition that must be submitted since it merely makes a generic reference to courts that have “jurisdiction over disputes arising therefrom” (that is to say between the two parties to the contract), which leads this Court to place importance on the type of relationship involved as opposed to the type of claim which is brought (of which there is no trace in the Legislative Decree); (b) in the event that one were to have to identify a court of jurisdiction on the basis of both the main petition (general jurisdiction based on the place of residence/domicile of the legal person) and the subordinate petition (jurisdiction based on the place of residence/domicile of the consumer), the court identified in the latter case would still have jurisdiction over the whole dispute on the grounds of the rule of the accumulation of both actions against the same person pursuant to art. 104 c.p.c. (which only allows for the separation of the two actions on the grounds that the case at hand must be dealt with quickly, which was not even submitted as a ground in the present case).

Leave a Reply

Your email address will not be published.

*

Related Posts
AVVOCATO,

CERCHI SENTENZE SU CASI ANALOGHI AL TUO?

CASSAZIONE.NET 4.0 L'EVOLUZIONE DELLO STUDIO LEGALE
PROVA GRATIS
close-link
Avvocato, vuole gestire tutta la sua professione con un'App?....
PROVA  ORA GRATIS
close-image