Abusive clause requiring car repairs to be carried out only at insurance-agreed body shops

A clause limiting the owner's choice of body shop to have their car repaired is a clause that penalises motorists who do not use a repair shop that has an agreement with the insurance company. The Court of Cassation thus upheld the appeal of a body repairer against an insurance company that imposed a contractual clause with a deductible of20% on its customers who had repaired damage to their car at a body repair shop outside the network of agreements with the company.

At the root of the dispute was the different choice of a driver who, in order to restore his car, which had been vandalised by a car that had been vandalised, had turned to a trusted body shop. This choice had cost him a 20 per cent deductible, which was successfully contested by the same body shop in court. The judge at first instance had, in fact, declared the overdraft null and void. A decision overturned by the Court of Appeal that had considered the clause not abusive and confirmed the deductible. But, in the last step in court, the craftsman found his judge in Berlin. The Supreme Court, in fact, upheld his appeal and   annulled, with reference, the contested judgement.

The courts of legitimacy clarify the question: it is essentially a question of clarifying "whether the clause by which an overdraft value is determined on the cost of the repair carried out by a body repairer not having an agreement with the insurance company is greater than that provided for if the repair is carried out by a body repairer having an agreement with the same insurance company is vexatious or abusive in that it restricts the contractual freedom of the weaker party in relations with third parties, limiting the right of free choice on the market of the operator to turn to in order to favour those chosen and agreed with the insurance company".

For the Court of Cassation, the first step to take in order to give an answer is to consider the clause "in the crosshairs" not in isolation "but in relation alsoto the other clauses of which the content of the contract is made up and to the overall tenor of the contractual text, in order to verify whether in the specific case it determines a significant imbalance of the rights and obligations arising from the contract in which, pursuant to Article 33, paragraph 1, of Legislative Decree no. no. 206/2005, in which the vessatoriness of the clause is substantiated". A step that, in the case examined, the Court of Appeal did not correctly make.

It must first be ascertained whether the "condition" was imposedon the consumer or was the result of free acceptance after aspecific negotiation. It must then be ascertained whether, 'in the absence of the latter, the clause in question is to be regarded in this case as abusive in so far as it is intended to limit the possibility for the consumer to fully exercise his contractual autonomy in the fundamental expression represented by free access to the market'.