unilateral change of banking contracts of life and the right of withdrawal:
a recognition problem.
Mr. Antonio M. Polito
Mr. Antonio M. Polito
; The operation of article 10 of Decree of 4 July 2006, n.223, converted, with modifications, L. No 248 of 4 August following, on the regulation of unilateral changes of contractual terms in banking relationships, has led to some uncertainty of interpretation of no less importance.
In particular, these uncertainties have affected the conditions objectives of this option, and the breakdown of costs for this connected. A document of 'clarification' by the Ministry of Economic Development on 27 February 2007, however, sought to shed light on the institution, but not all the reasons seem allayed concerns.
There will, therefore, the persistent criticism of the text, while after the clarification of government.
A first point from which it is appropriate to leave, although not resulting from uncertainties literal is inherent in the possibility of exercising the right to unilaterally change the contract terms only if expressly provided for in the contract . To be more precise, then, must say that this 'right' conferred by the Act does not cover long-term contracts tout court, but only those for which it was expressly ' agreed ' the opportunity to exercise it. In other words, the reform law did not make this right 'natural' to any contract term, but it has made legitimate the inclusion treaty (and, as we shall see, under certain conditions). We reiterate that the text (reformed) the first paragraph of Article .118 of the Banking Act (Legislative Decree no. 385/1993) is clear about that, but we believe that this fundamental assumption (operational and interpretive) and, in some comment, not sufficiently stressed.
This explicit convention, then must satisfy three basic requirements , a formal, two of substantial, namely that:
a) is possible to exercise this power only in the presence of a 'just cause ';
b) only change planned in case of contract (not the introduction of clauses scratch )
c) sia pattuita nel rispetto delle forme previste dall’art.1341 C.c., co. II (la generale disciplina sulle ‘condizioni generali di contratto’, ovvero l’espressa e separata sottoscrizione per iscritto).
A tale facoltà, essendo attribuita in via del tutto eccezionale ad una sola delle parti del contratto, viene riconosciuta specularmente, per mantenere l’equilibrio sinallagmatico, una consequent right of withdrawal by the contractor, which has the possibility to withdraw within sixty days and without charge, by a contract from the conditions changed and he never accepted.
Leaving aside the questions of substantive scope of these departments, as defined in note from the Ministry generically as 'intermediaries' and are identified in detail, is worth focusing on two aspects listed above, starting from that of 'just cause ' .
This aspect, according to the reading of the Ministry, may refers either to the quality of the customer, such as its 'reliability', or to changes in general economic conditions that affect the operating costs incurred by intermediaries.
On this point, however, we must make two observations .
The first is that, according to the provisions of paragraph of Article I of the novel. TUB 118, also the prospect of 'just cause ' seems to have to meet the criteria of Article. Cc 1341, and therefore it follows, in our opinion, to give prior notice and expressly accepted and signed, while generic elements that can be 'valid reasons' for unilateral modification of contract terms. The text on this point, it seems quite tight and hardly compatible with a less strict interpretation. A failure to comply with these formalities should therefore imply, even in this case, the ineffectiveness of such clauses, if they were unfavorable to the client (ex art. 118, co.III, T.U.B.).
La seconda osservazione riguarda invece i costi operativi sostenuti dagli intermediari che, secondo il Ministero, possono aumentare, variando così le condizioni contrattuali, in ciò giustificando la facoltà di modifica unilaterale. La peculiarità di tale previsione, tuttavia, è che tale aspetto funziona solo a favore dell’intermediario e non anche, in senso contrario, in favore del cliente . That is, if the cost to the intermediary were to increase, he may exercise the right of unilateral change, and conversely, if the client of the intermediary should have knowledge of an agent that has lower costs, he could not enjoy the same the same faculty (edit unless terminated) .... Of course, it is well recognized as to be regarded as unfair to equate a person there that cost them (the broker), with one that has not (the customer), but if we ask in view of the parties within a contract, and each of them in their mutual economic relations and reciprocal obligations, increasing the 'risk' a (possible increase in costs) should compare the increase in the 'risk' of the other (open-ended contract binding nature in the face of other more favorable contract terms). Probably, however, this limitation may be nullified by the provision of article 10, co.II of Law 248/06 (on which read below).
correctly, Finally, the clarification of the Ministry also points out how the ' just cause' should be communicated so that the customer can evaluate the merits and appropriateness, or argue and defend their interests.
The second aspect is particularly sensitive to the above law, it is Finally, one concerning expenses in case of withdrawal .
From this point of view, discipline, after conversion of the law ' August 2006, has become two since, in the same article (Article 10), are included in two separate cases, or, again under term contracts,:
a) the withdrawal of the customer as a result of unilateral modification of contract terms (Co. I);
b) the withdrawal of the client, provided always right as freely exercised (Co II).
The first, in fact, is addressed in the text of ' art. 118, par. II, TUB (such as for news from ' art.10, co.I of Law 248/06), which specifies that the client, in case of termination due to unilateral change by the intermediary, to exercise its right " without charge."
The second, however, is governed by paragraph II of Article 10 of L.248/06 , thus has no content (and limitations) of the specification and TUB come “ in ogni caso, nei contratti di durata, il cliente ha sempre la facoltà di recedere dal contratto senza penalità e senza spese di chiusura ”.
Da tale diversa disciplina, allora, e sulla base della maggiore ampiezza della prima dizione rispetto all’altra, può argomentarsi che, mentre in caso di recesso a sèguito di modifica unilaterale delle condizioni contrattuali, al cliente non possa criticized no expense, the exercise of the withdrawal is not justified by contract amendment, could result in payment by the latter of those expenses that are not covered in ' penalty' or in ' closing costs'.
Hence, it is easy to conclude that it could be offered as the 'cost discipline 'borne by the party intermediary, which in the case of termination due to unilateral change, there will certainly be charged to the customer, while in case of withdrawal is not justified by the customer could find more reasons (legal and functional) for their allocation to the latter.
On this very last point, however, is specified as the instructions of the Ministry in 2007 are divided with the view expressed here (incorporating the ' closing costs ' in the 'closing costs '), but also inconsistent, in our humble opinion, the regulatory text, with a distinction between 'closing costs' Affairs ( not chargeable) and 'closing costs' incurred by third parties (chargeable to the client), which, unless expressly agreed in the contract (and always respecting the formalities of Article 1341, co.II, Cc), not being provided by any legislative data, does not seem justifiable.
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