RICERCA ITALIANA     

The protection of the weak contractual party in EC and domestic law, especially with regard to the tools aimed at balancing the contractual positions in the relationships among professionals.

Università degli Studi di Trento

Abstract

Since it is quite common, in business and trade practice, to find substantial legal and economic sources of inequality among contracting parties, the team members decided to focus this research project on the analysis and identification of homogeneous and consistent regulations on the protection of weaker contracting parties. Such an achievement would allow a better regulation of the complex world of business. We also plan to consider whether a specific discipline on the protection of weaker professionals is missing in the legal systems under scrutiny. This leads to the idea of researching and identifying a coherent body of contractual draw from explicit sources (laws drafted with purposes other than the protection of a contractual party and case-law), commercial practices (codes of conduct) or implicit rules/social norms.
Subject matter of this study will be mostly the Italian and EU legal systems, although particular emphasis will be put on the US system, which exhibits a strong tradition of weak party protection.
As a consequence, the first step of the project will imply an analysis of EU laws: not only formal and compulsory, but also so-called "soft law" and other related documents relevant for commercial practices, such as the Unidroit principles; commercial codes of auto-regulation, ethical codes etc.
Secondly, we will work out materials and documents both through an "law and economics" approach as well as a comparative examination of the solutions devised by the domestic and the EU systems.
After the identification and detailed description of the selected rules and of their content, we will classify them in a taxonomical system. The achieved results will provide the basis for our proposal of an internally consistent body of contract rules. <<<

Principal Investigator

Gian Antonio BENACCHIO Università degli Studi di TRENTO

Research Objectives

The first part of the research will be done at the University of Trento and will tend to verify the necessity of new instruments of protection of the professional - weak contractual party; secondly, we will consider if these new methods respond to exigencies of a good policy, in the interest of both companies and consumers.We will than analyse both national and communitarian Law and case-law concerning the protection of consumers and of the competition and the market, so as to verify if it is possible to draw some principles that could integrate commercial contract law in a new way.At the end, we will try to identify an homogeneous and coherent regulation of protection of the weak contractual party.The objective is to find, if possible, a new category of contracts that within the traditional bipartition into consumers and professionals contracts will permit to regulate in a better way the complex world of business.As to the method, the Research Unit will analyse EC law and the subsequent national legislation about consumers and commercial contracts, using on-line resources and databases (celex, eur-lex, parlamento.it, CED Cassazione, etc.), CD-Rom databases, doctrinal studies (to be find in the University Library and through the National Library System), other material to be found in national, European and community institutions.The work will be developed through various steps:1) First of all, researching EC laws, not only formal and compulsory, but also soft law an other related documents, such as communications, recommendations, white books, green books, etc.2) Secondly, analysing the interpretative decisions of the ECJ on the basis of article 234 EC Treaty, and the ones the sanction infringements of Members States on the basis of article 226 EC Treaty. This source of law is particularly important, because obliges Member States to follow the interpretation given by the Court.3) Thirdly, the same research will be done with national legislation and case-law.4) Fourthly, we will examine all other documents, relevant for commercial practices, such as Unidroit principles or commercial codes of auto-regulation. 5) After collection of the said materials we will elaborate their contents according to the goals of the research both trough an economic-analysis-of-law approach and a comparative examination of the solutions given by the domestic and the European system. We will also consider that a useful contribution to the topic may be given by the comparison of other legal systems (to be identified in the course of the research) belonging to the western legal tradition and which pay more attention to the protection of the prefessional - weak contractual party. 6) After identifying and making explicit those rules and their content, they will be ordered in system and will be the basis necessary to propose a coherent body of contractual rules. <<<

First Results

Our purpose is to collect and systematize a great deal of data and documents of various nature. As a result of this activities, initially allocated amongst the members of the project team according to their specific competencies, we expect to be reach a fairly compete and updated picture of the status quo in the issue at hand, which will then subject to a critical and analytical assessment in the subsequent stage of the research project.At the end of this step we expect to reconstruct a set of rules, systemized and complete, which will be the starting point for our elaboration, in the third step of the program, of a uniform set of rules protecting the weak party.At the and of two years, and as a conclusion of the last step of the research we hope to be able to obtain a set of immediately usable rules, coherent and expressed in all its elements, to which market operators could see during contractual relationship. <<<

Timescale

24 months

National and international background

It is common in business and trade to find a substantial disequality among contractual parties. The European Community and the western legal tradition systems in general have shown a growing attention to the implementation of a substantive contractual justice, capable of enhancing the efficiency of the trade system. The development of this topic makes lawyers think about the possibility of a progressive extension of the protection now given only to the weakest contractual parties (above all consumers) to all the parties adversely affected by an asymmetrical contractual power.In the field of contract lawthe role of the weak party has been traditionally identified with one of the consumer, without consideration of the relationships stemming from commercial contracts, where both the parties make the agreement as entrepreneurs professionals. Nonetheless, there is a growing tendency to offer protection to commercial contracts among professionals, at least in the doctrinal debate even if not yet through specific laws and regulations.Actually, the first attempts to analyse the weak party topic took place in the middle 80ies, particularly with the famous research of Virassamy (Les contrats de dépendence. Essai sur les activités professionelles exercées dans une dépendance économique, Paris, 1986). The author underlined that, in business and in contractual practices, professional relationships used to be characterised by strong inequalities. This happened in all the main areas of business activities: production of goods, distribution and production of services.At the origin of our research there is the consideration that economic dependence between contractors is part of all the relationals contracting, not only of the relation between a professional and a consumer. Indeed this could be true also when the protagonists of the contractual relationship are a small entrepreneur and a big company.At the moment EC law is protecting the weak party-entrepreneur only indirectly and partially, trying to safeguard especially the competition and the market (see regulations 1983/83 and 1984/83, concerning exclusive distribution and buying; regulation CE 4087/88, about franchising; regulation 1475/95 on the distribution of cars, recently modified by regulation 400/2002); regulation 2790/99, regarding the application of article 81, paragraph 3, EC Treaty to vertical contracts and agreed practices).The last consideration together with the ascertainment that a specific discipline of protection of the weak professional is missing even at the level of the domestic law leads the idea of researching and identifying a coherent body of contractual draw from explicit sources (laws drafted with purposes other than the protection of a contractual party and case-law), commercial practices (codes of conduct) or implicit rules. <<<