Onus probandi: difference between Civil Code and Code of Consumer

The Court of Cassation, in its judgment no. 13148/2020, published on 30 June, expressed the following principles:

the application of the rules of the Civil Code is subsidiary to the application of the rules of the Consumer Code;

the burden of proof of the consumer, according to the provisions of Article 132 of the Consumer Code, is different according to the period in which the defects of the thing sold are discovered by the consumer.

The Court has once again intervened in the jurisprudential debate on the burden of proof regarding the guarantee for defects in the purchase and sale of movable property. In fact, there is a first guideline according to which the judges of the Court of Cassation held that “with regard to the issue of the guarantee for defects in the sale of goods, the buyer must prove the defects, the harmful consequences and the causal link between one and the other; on the other hand the lack of fault, which must be proved by the seller, is relevant only when the other party has previously demonstrated the alleged breach” (thus, expressly, Court of Cassation, Section II, 26 July 2013 no. 18125,); on the other hand, with different rulings, the Court ruled that “on the subject of non-fulfilment of the sales contract, it is sufficient for the buyer to attach the incorrect performance, or to report the presence of defects that make it unsuitable for the use for which it is intended or reduce its value appreciably” (ex multis Court of Cassation, section II, 02/09/2013, no. 20110).

This time the case before the Supreme Court concerned the purchase and sale of a used car that showed serious defects three months after the purchase.

Following the rejection, both in first and second instance, of the claim for damages, the buyer of the vehicle appealed to the Court of Cassation complaining about the violation of the rules of Article 132 of the Consumer Code, because according to him the second instance judge had wrongly applied the rules of the Civil Code instead of those of the Consumer Code.

The Court of Cassation, considering that the purchaser’s argument was correct, stated that “with regard to the sale of consumer goods, the rules of the Consumer Code (Article 128 et seq.) must be applied in the first place; the rules of the Civil Code on sales and purchases must be applied if the rules of the Consumer Code do not contain precise provisions on the matter. It is clear that the rules of the Civil Code have a subsidiary role“. The Court then certified a violation of the principles on the burden of proof under Article 132 of the Consumer Code since  “it is assumed” that “defects of conformity, which become known within six months after the delivery of the goods, are already existing at that date of the delivery, so it is the responsibility of the consumer to attach the existence of the defect, while it is the responsibility of the seller to prove the conformity of the goods delivered with the contract of sale. Once this deadline has passed, the general rules on the burden of proof provided for in art. 2697 of the Italian Civil Code shall apply again“. The Court of second istance should therefore have ascertained that the defect had been reported within two months of delivery and, since the defect had become apparent within six months of delivery, apply the presumption iuris tantum of article 132, paragraph 3 (the burden of proof of buyer would have consisted merely in the allegation of the defect). On the other hand, it was for the defendant seller to overcome the presumption under Art. 132, paragraph 3 of the Consumer Code by proving the conformity of the goods delivered.

In conclusion, according to the recent judgement, the period of time of six months from the delivery of the goods delimits the scope of application of the special rules provided for by the Consumer Code; once this period has passed, the ordinary rules of the Civil Code concerning the guarantee for defects in the purchase and sale of movable property and especially the rules concerning the burden of proof (Article 2697 Civili Code) are again applicable.