Alberto De Franceschi

Recent Evolutions Regarding Contractual Restrictions on the Assignment of Claims. The Need for a more Systematic Approach

  • Abstract

Informations and abstract

Keywords: Contractual Restrictions on Assignment of Claims; Mechanisms for Restoring the Contractual Balance; Recent Developments in Italy; Shortcomings of Directive 2011/7/EU Combating Late Payments In Commercial Transactions; International Legislative Developments; Fragmentation of Solution Among EU Member States; Perspectives.

The profound evolution in the European and international legislative framework with respect to contractual restrictions on the assignment of claims offers an opportunity for a critical reinterpretation of the Italian legislation and a different, innovative reconstruction of the conditions of admissibility of agreements aimed at restricting or prohibiting the assignment of monetary claims (and in particular of trade receivables) in order to understand and take adequately into account the different needs of traders as well as to promote their competitiveness in the international market. In this context, particular attention should be focused on, among the others, the interaction between the provisions on contractual restrictions on the assignment of trade receivables and the implementing provisions of Directive 2011/7/EU on combating late payments in commercial transactions, as well as the recent introduction in Italy, under law decree no. 245 of 23 December 2013, of a provision concerning restrictions on the assignment of the right to compensation for injury or damage resulting from the use of motor vehicles and watercrafts. Moreover, an analysis of the fragmentation of the legislative solutions addressing the topic of the "pactum de non cedendo" in different European countries provides a basis for reflection in the context of private international law, which highlights the substantial limits to competitiveness and to the development of the internal market resulting from this lack of homogeneity.

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