12:24 Apr 21, 2019 |
Italian to English translations [PRO] Law/Patents - Law (general) / Comparsa di sostituzione e risposta | |||||||
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| Selected response from: Alison Kennedy Italy Local time: 09:39 | ||||||
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4 +1 | guarantor/person acting within the course of his trade or profession |
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guarantor/person acting within the course of his trade or profession Explanation: Firstly, I think "c.c." should be "c.d." so-called" and your question regards legal theory or construction of the position of the person acting as a guarantor in the case of the provision of goods or services to another party to a goods or services agreement, where the guarantee regaards due performance of the obligations, i.e. payment/repayment for such goods or services. E.g. a bank guarantee. Parents of Marco have asked the bank for an overdraft of EUR 50,000, duly granted against a bank guarantee provided by Marco, the son. The question is, is Marco acting as a consumer when he gives that guarantee and therefore benefits from consumer's rights in signing the guarantee agreement, such as the right of withdrawal within 7 days after entering into the agreement, or is he acting within the course of his trade or profession. This piece of case law regards a preliminary reference - so-called Reference 234 application from a German higher court to the ECJ regarding the proper construction of article 2 of Directive 85/577. Case no. C-45/96 -(Dietzinger for short) and the ECJ established as follows: "The answer to the question referred to the Court must therefore be that, on a proper construction of the first indent of Article 2 of Directive 85/577, a contract of guarantee concluded by a natural person who is not acting in the course of his trade or profession does not come within the scope of the directive where it guarantees repayment of a debt contracted by another person who, for his part, is acting within the course of his trade or profession. This doctrine (since 2017) is only just starting to filter down into Italian case law, and the Italian Supreme Court has taken the view that the application of the principle of acting/not acting as a consumer/within the course of a trade or profession should be decided on a case by case basis. |
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