The Italian Legislative Decree n°170/2021 has made important amendments to the Italian Consumer Code not only extending the rules in favour of the Consumer, but also dealing with age-old questions that provoked much debate in both doctrine and case law.
Chapter I of the Title III, Part IV of the Code has been completely revised.
There are many new rules that will come into force on 1st January 2022. The legal provisions will be applied to any transaction concluded after that date.
First of all, with regard to application, the law doesn’t refer to “consumer products” anymore but speaks simply of “goods in general” with specific definitions; the term “Vendor” is also extended to the suppliers of web platforms and the definition of goods now includes digital elements and live animals.
The term Manufacturer has been extended to anyone who “introduces himself applying on the good his name, his brand or trademark” [see article 128, 2, sub d) ICC].
With regard to the lack of conformity of the goods, the requirements are now set out in the new Article 129 ICC which distinguishes between the subjective requirements – i.e. those specifically requested by the Consumer – and the objective requirements (definition not previously set the law) which refer to the characteristics of every good of a certain type.
With reference to the vendor’s obligations, the law introduces some defences when the good does not conform to the publicly stated declarations (or statements made by the Manufacturer):
– Those declarations were unknown by the Vendor.
– Those declarations were corrected when the deal was concluded.
– Those declarations did not influence the decision of the Consumer to buy the good.
For digital goods, the Consumer is obliged to perform the upgrades required regularly otherwise he will be liable in case of subsequence defects.
All the rules related to the incorrect installation of goods have been changed: the Vendor will be liable only if the installation was performed in an inadequate manner or if the instructions were wrong.
However, nothing has changed with regard to the duration of the guarantee of the goods (which lasts 2 years from the delivery): this guarantee is now extended to digital goods.
Also the limitation period for claims for guarantee is unchanged (period of 26 months from the delivery of the goods) as well as the right to claim against the previous seller of the same chain of contracts (1 year).
Nevertheless, the term of 2 months, previously set to inform the seller of a lack of conformity, has now been cancelled by the law: it must be assumed that, from now on, this term will be regulated by the Italian Civil Code.
At the same time, the burden of proof has been clarified with a relevant change: the presumption of a lack of conformity of the goods is now extended from six months to one year, digital goods included.
Among the remedies available to the Consumer, the reduction of the price and the termination of the agreement have been confirmed: the Consumer is entitled to ask for a reduction of the price but proportionally to the decrease in value of the goods (the use of the good is no longer mentioned) and, if the lack of conformity is limited to certain goods returned, the agreement can be terminated only for them; in this case the Consumer is required to return the items at his expense.
In the end, the rules of the Italian Civil Code are all applicable with reference to the formation of the contract, to the validity and the effectiveness of the agreement and to the consequences of a termination of a contract and possible damages (previously damages were not explicitly considered).
All these amendments are significant because they will have a serious impact on the relationship between the Consumer and the seller: only in 2022 will it be possible to fully assess the application of the new revised Code.