Abuso di dipendenza economica e squilibrio nei contratti tra imprese. Norma, sistema, tutele, prospettive

Translated title of the contribution: [Autom. eng. transl.] Abuse of economic dependence and imbalance in business-to-business contracts. Norm, system, protections, perspectives

Research output: Book/ReportBook

Abstract

[Autom. eng. transl.] The volume examines the prohibition of abuse of economic dependence provided for by art. 9, law n. 192/1998, favoring a line of investigation aimed at showing a certain deviation between the enthusiasm with which the doctrine has accepted a discipline that prohibits, among other things, the imposition of unjustifiably burdensome contractual conditions between companies and the application practice, in which this type of abuse has rarely come into prominence. The first part of the book is aimed at identifying the reasons for the lack of dialogue between "formants": essentially attributable to the affirmation of a restrictive interpretation of the presupposition of economic dependence, that is, the situation of weakness characterized by the unavailability of satisfactory alternatives on the market in which the company must find itself in order to obtain protection pursuant to art. 9. This situation, referable according to the jurisprudence to the party that has accrued a reliance on the continuation of the commercial relationship in progress, makes it possible to consider abusive at most the imposition of conditions modifying the initial terms in a pejorative sense for the company which now by the partner, she will be willing to renegotiate in order to avoid the breakup of the relationship. On the other hand, it does not allow reviewing the imposition of unbalanced aborigine conditions, although this is precisely the scope of application of the rule that aroused the interest of the prevailing doctrine, which immediately approached the prohibition of abuse of dependence. economic to the regulation of unfair terms in the consumer's contract, as they both involve an unprecedented review of the so-called justice of the contract. In the second chapter the attention shifts from the norm to the system to investigate how the idea of a trade union on the contractual imbalance has appeared in jurisprudence rather on the basis of controversial institutions of general contract law (or "first" law), regardless from ascertaining a situation of asymmetry of power between the parties such as that of economic dependence: a propensity that has in some ways contributed to obscuring the potential of a special discipline (or "second" law) such as the one in question , which such a union expressly provides by identifying the conditions and characteristics of the same. After having analyzed in the third chapter the functioning of the protections, first of all invalidating, which in a protective function preside over the adaptation of the contract concluded through the abuse of economic dependence, the author puts forward in the last part of the work an "evolutionary" interpretation of the notion of dependence , wider than the one emerging from the consolidated jurisprudential arrests and such as to guarantee protection to the company forced to accept unjustifiably burdensome conditions from the outset. The reflection, also aimed at promoting greater interaction between public and private enforcement, thus sets out towards concrete goals, outlining more "challenging" application horizons than those experienced in the over twenty years of art. 9, law n. 192/1998, and in line with the need to enhance the regulatory tools capable of guiding the interpreter in the delicate task of controlling the exercise of contractual autonomy.
Translated title of the contribution[Autom. eng. transl.] Abuse of economic dependence and imbalance in business-to-business contracts. Norm, system, protections, perspectives
Original languageItalian
PublisherGiuffrè Francis Lefebvre spa
Number of pages412
ISBN (Print)9788828821724
Publication statusPublished - 2020

Keywords

  • Abuse economic dependency contract remedies
  • Abuso dipendenza economica, squilibrio, contratto, imprese, rimedi, antitrust

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