21 Maio 2014
The credit for consumption is generally provided through related agreements.
Therefore, legally, the credit for consumption agreement (i.e., the number of acts made in order to achieve the result of the economic operation) is thus regarded as an atypical trilateral agreement due to several different reasons, but arranged for the realization of the economic and social function of one of the associated transactions.
Having a so-called teleological or intentional unique connection, the relation between all these agreements is set according to the fact that the validity and effectiveness of one of them affects the validity and effectiveness of the other.
In particular, the law states that related agreements exist when two or more transactions, different from one another, while retaining its individuality, are regarded as intentionally connected by mutual interconnection and coordination, so the events of one should affect the other, influencing the validity and effectiveness (see Cass. n. 8410/1998 ).
Legislative Decree No. 141 of August 13, 2010, concerning the credit for consumption, has implemented Directive 2008/48/CE in our regulation and has amended Articles 121 et seq. Legislative Decree No. 385 of September 1, 1993, guaranteeing a higher level of consumer protection in the event of executing financing agreements connected to the contract of sale or supply of goods and services.
According to previous regulation concerning the so-called related agreements in art. 42 Legislative Decree No. 206 September 6, 2005 - now repealed by the entry into force of the above mentioned regulation - the default occurred in one affected the financing agreement "provided that an existing agreement gives the lender the exclusive rights for granting credit to the supplier’s customers. The responsibility also concerns the third party to whom the lender has assigned the rights belonging to the agreement concerning the granting of credit."
Therefore, the idea that the establishment of a mortgage for a purpose could result merely from the qualification of the mortgage in terms of consumer loan and from the bank payment to the seller by irrevocable delegation of the borrower is excluded, in case the agreements between the parties had specifically provided for the "complete non involvement" of the lender in "the commercial relationship with the seller and in any other relation connected, existing with third parties."
Therefore the leading idea denied the operation unity from a legal point of view.
The previous law was, however, repealed by Legislative Decree No. 141/2010 that introduced significant news and specifically:
- Art. 121, letter d) Legislative Decree No. 385 September 1, 1993, as amended, points out a definition of related agreements recognizing, essentially, the idea of related agreements between the sale agreement and financing agreement.
- New art. 125d Legislative Decree No. 385/1993 identifies some new rules to regulate the buyer’s /supplier’s default when such link exists and entitles the buyer to request the termination of the loan agreement (always after unsuccessfully placing the seller in default) on the only base of the seller’s default valuation, pursuant to art. 1455 Civil Code.
The 2010 regulation, leaves out , then, the condition of exclusivity between the seller and the lender for the grant of credit to seller’s customers from the related agreements regulation concerning credit for consumption operations.
The functional tie that binds the lender credit position to the actual implementation of the buyer’s interest then becomes stronger, being affected only by the seller's default valuation, given that it can be no longer left out because of the lack of an exclusive agreement for the grant of credit.