The right of withdrawal of disputed claims (ex art. 1535 CC): complete exegesis and some remedies for the debtor-consumer

Abstract

The novel aspect in this work lies in the comparison drawn between Article 1535 (cc) and consumer law. This paper aims to open a new line of research, namely how to interpret the nineteenth-century provision, in relation to the inappropriately named ‘right of withdrawal’ (from the credit in question) when the debtor is a consumer. In more concrete terms, it is necessary to delve deeper into the transfer of unpaid or defaulted consumer credits to third parties outside the mandatory relationship through bulk assignment. A re-reading of Article 1535 (cc) is called for, compliant with the hermeneutic criteria set forth in Article 3.1 (cc): grammar, historical and legislative background, purpose, original spirit, and current social reality should be brought into line with the emerging consumerist context. Case law, far removed from any degree of integration with consumption rules, applies an excessively restrictive interpretation, establishing stringent requirements that fall without the literal dictates of the rule. To some extent, this research establishes a baseline from which to progress toward the protection against debt brokers of the weaker party to the assignment, the debtor-consumer.