Data di Pubblicazione:
2012
Citazione:
DIRITTO DEI CONSUMI E RESTITUZIONI / M. Cognolato ; tutor: F. Addis ; coordinatrice: C. Tenella Sillani. Universita' degli Studi di Milano, 2012 Apr 18. 24. ciclo, Anno Accademico 2011.
Abstract:
DOCTORAL THESIS ABSTRACT
(“CONSUMER LAW AND RESTITUTIONS”)
THESIS DEFENDANT: MASSIMO COGNOLATO; TUTOR: PROF. FABIO ADDIS
The investigation conducted for this PhD thesis started with the analysis of the answers originally provided by national law (and the first draft directives) on doorstep selling, regarding possible restitutionary issues linked to the “consumeristic” right of withdrawal.
The 1972 French law on démarchage, only considered the possible limitations that (in terms of effectiveness) the remedy could be subject to, due to the necessity for the consumer (after the exercise of the right of withdrawal) to ask the reimbursement of payments made during the bargaining process that took place away from business premises.
Therefore, the (minimal) solution adopted was to suspend the payment of any sum due by the consumer party before the expiration date for the exercise of the right of withdrawal; however, the issue of performance of obligations (primarily, the delivery of goods) by the business was not at all tackled.
The 1977 Draft Directive adopted the same approach and dealt with further restitutionary aspects, as well.
Article 8 stated that "1. in case of exercise of the right of withdrawal, [payments and] goods received are returned to the seller, at his own expense and risk. 2. The consumer is not required to pay a fee for the normal use of the goods during the period referred to in Article 6 [i.e., prior to exercise of the right of withdrawal]. 3. omissis".
Therefore, first, the principle of “freedom” of the right to withdraw and its natura “free of charge” was expressly stated (generally pointing to the irrilevance of reasons underlying the consumer’s choice of withdrawing; and the impossibility, for the business, to impose fees or costs on the basis of the exercise of the right of withdrawal; with the exclusion of certain costs promptly identified by the law: eg., costs for resending the goods by the consumer), and, second, the problem of the “value of benefit” was also addressed (on the basis of use of the delivered goods) as a possible enrichment factor for the consumer; such entry was excluded from those subject to an obligation to return, following the exercise of the right of withdrawal.
The following Directive 85/577/Ce on contracts away from business premises did not share the same attention to restitutionary effects of the right of withdrawal.
While the lack of the enunciation of the “free of charge” nature of the right of withdrawal was not particularly significant (given that it was implicit in the logic of the legislative intervention and, de facto, “retrospectively” recovered by the following Directives), the fact that regulation of effects of the exercise of right of withdrawal was completely reserved to national legislators represented the main factor that led to a fragmentary assimilation of the new discipline by the european legal systems.
On the basis of these considerations the strategic nature of “restitutionary rules” was highlighted, in relation to the aim of granting a (efficient and effective) remedy which acts as a “counter-balance” instrument for contracts concluded in situations where the '"surprise effect", putting consumers at a disadvantage, not only involves the characteristics of goods or services, but the very fact of negotiation itself.
2. It seems appropriate for the restitutionary aspects (in consumer law) not to be tackled in the light of national dogmas (e.g., the principle of 'res perit domino' in relation to the passing of risk) but, rather, under the perspective of the aforementioned “free of charge” nature of remedies (therefore, not limited to the right of withdrawal) granted to consumer parties (see the ruling of
Tipologia IRIS:
Tesi di dottorato
Keywords:
consumatore ; restituzioni ; arricchimento senza causa ; vendita di beni di consumo ; contratti delocalizzati ; recesso
Elenco autori:
M. Cognolato
Link alla scheda completa: