The minor's contract in the age of consumerism in Italy

• Author: Daniela Di Sabato
• Position: Professor of Civil law at The Second University of Naples, Italy
• Pages: 9-16

THE MINOR’S CONTRACT IN THE AGE OF CONSUMERISM IN ITALY

Daniela Di Sabato*

Abstract

The Consumer Code provides for major protection of the consumer, na mely the weakest

contracting party, not overlooking the under-age consumer. There a re several r egulations

showing that the legislator is aware of the possibility tha t the consumer raltionship involves

minors. On the other hand, according to Italian law, minors have no legal capacity to enter into

any contra ct. This essay explores on this contradiction and seeks to demonstrate the Italia n law

is in great need for timely and appropriate intervention.

Key words: contract, minors, Consumer Code, rights, capacity, parents.

Introduction

According to Italian la w, minors have no legal capacity to perform juridical a cts or to

enter into any contract. However, it is a fact that today a lar ge slice of the market is devoted to

minors: indeed, producers and retailers consider the latter as an interesting opportunity to

increase sales. That is why, from a strictly commercial viewpoint, no one denies the existence of

commercial relationships involving minors having a major impact on the market.

In this essay, I will seek to critica lly examine what actually happens in the consumer

market and, by contrast, what is presently provided for the Italian law: namely, that any contract

is invalid if one of the parties is a minor, unless his/her parents act as legal representatives.

1. According to the Italian Consumer Code, the consumer or user is the natural person

who is acting for purposes which can be regarded as outside his trade or profession or who buys

a product for purposes that do not fall within the sphere of his commercial or professional

activity. This definition does not constitute an innovation in the Code, since it had already been

employed by the Community consumer law and Italian law. Only the innovation of the reference

to “user” is to be recorded, which however has little relevance for the objectives that are of

interest here. Likewise disputes would prove misleading, albeit now considerably reduced in

numbers, concerning the exclusion of juridical persons from special protection on the one hand,

and those operating for professional reasons on the other.

The Consumer Code makes provision for contractual protection on behalf of the

consumer, as well as for protection outside the terms of the contract. In some cases, in fact, the

regulation assumes the existence of a contractual relationship, and the solutions provided for act

within the sphere of the contract. In other cases, in contrast, the protection does not take into

consideration the existence of a contractual relationship between the parties: this is the case, for

example, of the regulations having as object the responsibility for the product itself, which has

as its objective the indemnity for the damage incurred by the injured party, disregarding the fact

that the latter is also the purchaser of the damaging product.

In the Consumer Code, moreover, useful reference is also made to what are defined as

the consumer’s basic rights: in this case the subjective viewpoints are acknowledged for the

* Professor of Civil law at The Second University of Naples, Italy