The article deals with credit agreements linked to purchase contracts. The main question arising from «buying on credit» is that credit and purchase are individual contracts, but they form an «economic unit». Within these operations, which involve three parties [buyer, seller and lender], such complexity emerges, at a statutory level, only when the buyer is a consumer, namely a person who buys goods or services for their own use (art. 121 of Decree 385/ 1993, Law of Banking). In case of non-fulfilment by the supplier, if the consumer exercises the right to terminate the purchase, the connected contract of credit could be also cancelled as well, under art. 125-quinquies of Decree 385/ 1993. When a professional buys on credit, entering into a leasing contract, in case of non-fulfilment by the supplier, termination rights on credit shall be regarded relying on general principles of private law. In this respect, the lessee can't enforce his right to cancel also the credit contract invoking the interdependence, in the absence of a specific term. The Article aims at challenging the case law that follows such an approach, suggesting the adhesion to a more objective perspective, focused on the function of the contracts involved in the operation, irrespective of the status of the buyer.

Usi e abusi del collegamento nelle operazioni di finanziamento a struttura trilatera: il problema dell'inadempimento del fornitore

Francesca Bartolini
2017

Abstract

The article deals with credit agreements linked to purchase contracts. The main question arising from «buying on credit» is that credit and purchase are individual contracts, but they form an «economic unit». Within these operations, which involve three parties [buyer, seller and lender], such complexity emerges, at a statutory level, only when the buyer is a consumer, namely a person who buys goods or services for their own use (art. 121 of Decree 385/ 1993, Law of Banking). In case of non-fulfilment by the supplier, if the consumer exercises the right to terminate the purchase, the connected contract of credit could be also cancelled as well, under art. 125-quinquies of Decree 385/ 1993. When a professional buys on credit, entering into a leasing contract, in case of non-fulfilment by the supplier, termination rights on credit shall be regarded relying on general principles of private law. In this respect, the lessee can't enforce his right to cancel also the credit contract invoking the interdependence, in the absence of a specific term. The Article aims at challenging the case law that follows such an approach, suggesting the adhesion to a more objective perspective, focused on the function of the contracts involved in the operation, irrespective of the status of the buyer.
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/11567/895597
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