Il credito ai consumatori: profili di disciplina del contratto di credito collegato
Author(s)
Bernardini, Cinzia
Date Issued
June 13, 2013
Type
Doctoral Thesis
Abstract
The purpose of the research is firstly to define the phenomenon of "consumer credit" in the light of the
latest legislative reforms (Legislative Decree, 13 August 2010, n. 141 which amended the T.U.B,
where this phenomenon is regulated).
To that end, the survey has examined the areas within which the credit dedicated to consumers is relevant.
First of all, it has thrown light on the economic and social context which prompted the legislator, both at a
European and at a national level, to devote so much attention to the topic. Having taken this socioeconomic
aspects into account, the research mainly deals with the consumer credit phenomenon according
to a legal perspective: its specific discipline is briefly analysed while particular emphasis is put on a peculiar
aspect of consumer credit: "the linked credit agreement" under provision 121, paragraph 1, lett. d) of the
Italian Banking Act (T.U.B).
Particularly, this research seeks to examine some of the features of the linked credit agreement, mainly its
fattispecie (that is how this agreement is abstractly described by the Italian law) and its effects. On the one
hand, it is outlined that the exact identification of this phenomenon, as regulated by the Italian Banking
Act, is extremely controversial. On the other hand, the doctrinal and juridical attempts to clarify this
peculiar “economic transaction” are exposed. To put it simply, this phenomenon is described as an event in
which the consumer finds himself asking for "financing" in order to obtain the "supply" of a specific good
or service. As a result, the coexistence of numerous transactions (those related to "financing" and those
related the “supply") has led scholars to wonder about the existence or not of a legally relevant negotiating
combination. In other words, they have questioned themselves if the various transactions under
examination, certainly united within a commercial-economic plan, can be also subsumed under a unique
legal obligation. For it is difficult to come up with a clear solution (the doctrinal and juridical developments
has linked this phenomenon to various contracts: the purchase by installments, specific purpose loans
and the atypical multilateral contract or “connessione negoziale”), the legislator has, finally, legally
sanctioned the connection between the involved transactions and it has accordingly regulated the effects
of this agreement. Through them, the consumer should ultimately benefit from more protection.
However, such a legislative choice has come in for a lot of criticism. The research proposes to give
expression to them under a twofold prospective. On the one hand, by questioning the correctness of the
classification of the phenomenon in terms of a “connessione negoziale” and, more generally, of an
"economic transaction". On the other, by revealing the limits of the regulation of the “linked credit
agreement” with regard to the very protection of the consumer. Finally, it will shown what lurks behind this
technical choice.
Additional information
Dottorato di ricerca in Diritto dei contratti pubblici e privati
Subjects
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