Le prassi contra legem e la conclusione del contratto: le «prestazioni non richieste»

Abstract

The essay deals with the issue of the unsolicited provisions of goods and services regulated by the article 27 of the Directive 2011/83/EU and 66-quinquies of the Italian Consumer Code. In the first section, the unsolicited provisions are examined with regard to the general contract law and the author recognises that they may be determinant to conclude the contract, when certain conditions apply. By contrast, in the second section the author takes into account the consumer law and he concludes differently. In fact, also considering the unfair trade practices, the unsolicited provisions are defined by the legislator as non-binding. Therefore, the author suggests that the unsolicited provisions are not determinant to reach the agreement even though the consumer accepts them expressively, due to their non-binding nature. Accordingly, the unsolicited provisions may be considered forbidden because of the hazardous nature of this form of commercialisation of goods and services