Fabio Addis

The Automatic Replacement of the Clause «Grossly Unfair» in the Discipline of Late Payments in Commercial Transactions

  • Abstract

Informations and abstract

Keywords: Commercial Transactions; Gross Unfair; Replacement of Unfair Terms.

The new Article 72 d.lgs. 9.10.2002, n. 231, provides that, in commercial transactions, when the clauses relating to the payment period, the rate of interest for late payment or compensation for recovery costs are declared null and void because grossly unfair to the creditor, apply Articles 1339 and 14192 c.c. It's not clear, however, which is the regulatory material to be used for the replacement of unfair terms and, in particular, if for this purpose it is necessary to carry out an automatic application of the legal terms or, conversely, to a verification conformative, which brings fairness to the stipulation. The paper aims to clarify the historical reasons that led to the emergence of this opposition and to identify concrete cases where it is not permitted the application of the legal terms, being appropriate to reduce the unfair clause within the limits of the exception covenantal expressly permitted in the provision of the law in question.

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