In this section we will insert articles about, laws, regulations,extracts of judgments that affect the profession of real estate broker, his protection, protection of the buyer and the seller. In particular, will give the new rules governing the relationship between the mediator, the parties throughout the path that goes from the first contact with the estate agent, until the conclusion of the sale and in some cases beyond, the right to levy the mediation and / or the right of the buyer and seller to demand full repayment if the mediator is not writing regularly to the role of estate agents and have all the requirements.

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The Commission for keeping the R.E. Board at the CoA and control of contractual inquita risk '

The activity of professional mediation has a twofold source: Articles. 1754 et seq d.c. and Law No. 3 February 1989 39, which amended Law No. 21 March 1958 253.
The first, drawn by the legislature of 1942 in order to regulate a phenomenon that had not yet taken on the social and economic significance that today is their own, are ancillary provisions that regulate the content of the relationship of mediation, both casual and professional.
The second is, instead, the rule proposes that the figure of the professional mediator, ie a person who, using a preparation technique, carries on business in a stable and continuous. Among the several novelties of that provision and the implementing regulation No. 21/12/1990 452, Ministry of Industry, Trade and Industry are to be remembered - for the purposes of this case - a requirement of the mediator that the exercise of its business makes use of forms or forms in which the conditions are indicated contract "to deposit copies with the Commission for the Establishment of the role of mediators established in each Chamber of Commerce (Article 5 paragraph 4 of Law 39/89), and the need for these forms and the forms are" clear, easily understandable and inspired by the principles of contractual good faith '(Article 17 of Regulation 482/90).
The Commission for the Establishment of the role of Ombudsmen at the Chamber of Commerce of Milan, in fulfillment of this obligation, shall for some years to approve and retain the forms used by professional mediators in the province Ambrosian.
The entry into force of the novel of the Civil Code on "consumer contracts" - and particularly the legitimacy of the exercise given by injunction. 1469 sexies of the Chambers of Commerce - has imposed a revision of the "old forms", in order to ensure its compatibility with Articles. 1469 bis et seq.
Several associations of brokers have done so to deposit with the Commission new contract and to require the declaration of conformity to such provisions. The aim of this article is to identify the problems that the terms most frequently in the forms of mediation pose the interpreter. First, however, for analyzing the forms should be clarified that the consideration of compatibility with the news introduced by Law No 52/96 should be limited to agreements that govern the relationship between mediator and parties, excluding, therefore, those governing the contract that only those who have contacted the seller wish to conclude. It should therefore be checked before any evaluation of the clause on vessatorietà prepared by the mediator on the relationship goes to the same effect, which occurs very often is made difficult by the merger in a single contractual document between the parties, and professional and than between them.

EXCLUSIVE CLAUSES
Clarified this issue, you can move on to consider the individual clauses "in the odor of unfairness is most widely use in the model contract used by the so-called" estate agents ". Take, first, the exclusivity clause of the mandate given to the professional, ie one that prevents the consumer to conclude, during the period of effectiveness of the mediation, the same agreement with other mediators. In this respect, it was argued that this condition leads to restriction of freedom of contract of a consumer who is presuming vessatorietà art. 1469 bis paragraph III No 18 d.c. It is, in contrast, also noted that the presumption of unfairness of a clause may be excluded from agreements that substantially riequilibrino rights and obligations of paciscenti (arg. art. The paragraph b 1469 cc). It appears, however, not very easy identification of those corrective actions that allow - in practice - this re-balancing the negotiations.
The stricter view considers that the counterweight should be inherent to the nature, or rather to the unfair term. Thus, for a situation, in order to make effective a condition of exclusivity, you should limit the contractual freedom of the trader.
This strict interpretation is not universally shared. It is alleged that the balance of contractual obligations can be obtained thanks to the simple creation of rights in favor of a party or by the imposition of duties on behalf of.
That said, it was doubted that - in the models used by the so-called "estate agents" - prepared by the corrective mediators are sufficient to bring into balance the negotiating positions of the contracting unbalanced by the presence of the clause in question.
Indeed, it was found that even the more developed ( "the agent, given the exclusivity of office conferred, and taking into account that in view of that exclusivity has made a commercial assessment of the property, and determine the most likely market value, on the basis of which the Seller has determined the price shown in the previous paragraph ..., is committed to its care and costs: a) advise and assist the Seller in the activities necessary to procure the documentation referred to in paragraph ... ( in the context of this requirement, the authorized agent shall be construed to require consultation and the release of documents including condominium or the administrator to other persons and entities), b) promote the sale of the property, in the manner Profiles el'ordinaria care professional, using the organization and, in particular, advertise the availability of the sale of publications by sector and / or newspapers, or other suitable advertising media, including l 'inclusion in databases and, where possible, Internet sites, c) provide to Seller, at its request, any information about the activity, d) take care, on behalf of the Seller, the communication, a those who have expressed a proposal, that the Seller's acceptance thereof, possibly also by fax, telegram or letter ar, e) provide its assistance to the Seller after the end the affair, until the conclusion of the deed of sale f) to perform specifically the following additional activities: ...") would be characterized dall'indeterminatezza of the obligations assumed by the trader, that vagueness does not allow to balance the overall contractual arrangement. In this light it is, therefore, argued that only a detailed specification of the content of the duties of the Ombudsman in order to appreciate his sacrifice precision legal-economic, could rule out the unfairness of the exclusivity clause.
Bearing in mind the exclusivity of the mandate given to the professional, doubts have arisen in relation to the so-called "alternative condition", ie the estimates in that document is the contract clause of exclusivity (the seller will not give job to other agencies) that of the non-exclusive (the seller may sell the property directly or through other real estate companies without having a real estate agent commission or penalty, however, committing himself to repay the expenses incurred in performance of this office, even if no sale "), with the option for the consumer to tick the preferred condition.
It was, in fact, claimed that the pure alternative proposed above can not substitute for "individually negotiated" in art. Ter IV 1469 cc paragraph, because otherwise it would allow the trader to circumvent the new rules codicistica simply by setting up a contract in full text alternative which, however, consumers could only join only unfair. The development of alternative texts contract could exclude the vexatious nature of a clause only if it appears that consumer choice in favor of the condition "unfair" influence in a different aspect of that benefit (including, for example, a lower) .
Finally, even with regard to the exclusivity clause, is being studied in an attempt to assure effectiveness through renewal of the agreement to legal mediation, to include, as a natural Negotiate, the exclusive right, in order to permit ' of operation. 1469 III subparagraph b d.c. In other words, in this case, "approaching" the contract "obtaining business" - generally governed by the rules of the agency - would ensure validity to the clause in question because of spawning. 1743 d.c. It is clear however that such a "handling negotiations" will not be vitiated art. 1344 d.c. only if it is maintained that correspondence between the fundamental interests of the parties el'intento typical practice for the satisfaction of which is used normally to the type of contract prepared by the professional. Hours exposed doubts about the guilt of the exclusivity clause is generally extended to all those conditions which introduce - in the most disparate - the same restrictions on freedom of contract to the consumer. Take, as an example, the agreements that provide for the application of penalties (in most cases amounting to commission) in the conclusion of the contract by the consumer - with or without the intervention of another professional -- slope of his mediation.
Maintenance 'OF OFFICE
Another provision of the applicant's contractual models of mediation, for which they were raised doubts as to its compatibility with the news of the Civil Code, is the irrevocability of the mandate given to the mediator, ie one that prevents the consumer to withdraw from the mediation first deadline. More specifically it was argued that if this condition is to have as the sole aim of preventing the consumer - during the period of effectiveness of the relationship - the other channels for achieving the affair, the effect of limiting freedom of contract would be beyond doubt. Conversely, if it is proved that the said clause is only intended to foreclose the consumer - which has acceded to the contract that provides for the emergence of the right to commission simply finding a negotiating proposal complies with the received (and irrespective of the conclusion of 'business) - to waive or refuse to carry them out, it would not affect negotiations on autonomy of the weaker.
Another clause which provided interesting food for thought is that which provides for the devolution of all disputes relating to the relevant bodies to mediation-arbitration conciliation. Indeed, in addition to those who have concluded without hesitation to the presumption of vessatorietà art. 1469 bis paragraph III No 19 d.c. of all the arbitration clause, there are some who assumed only the unjust condition in which it gives of the matter to arbitrators ritual, arguing, instead, the effectiveness of the arbitration clause irrituale.
Finally, worthy of attention is the clause, contained only in the positions for the seasonal rental of property, which provides that "a) the agent may be run at the expense of all the principal activities for the maintenance of good rent state. A special authorization from the principal will be required for those activities cost more than L ..., and by this authorization may be irrespective of where it is impossible to make timely contact with the client, and it can be assumed that he would have given its authorization, b) the agent may be run at the expense of all the principal activities of cleaning as it may deem appropriate, c) the agent, if it deems appropriate, may enter, on behalf and at the expense of the principal, an insurance policy against the risk of damage to the building perimento or for any cause. "
It was argued that this condition should be assumed vexatious art. 1469 bis paragraph III No 10 (and perhaps 11 and 12) cc, as would the consumer at the mercy of "surprises" not foreseen at the time of the agreement. In order to exclude the presumption should be a detailed account of activities that the agent is authorized to perform, and the identification of the ceiling of expenditure, however - that is, regardless of whether or not to contact the consumer - this' last to address.
The rapid analysis undertaken in this short written highlights the complexity of the overall control that the legislature has imposed the Boards for the Establishment of the role of mediators established in each Chamber of Commerce. Indeed, the diversity of views of lawyers and the lack of precise indications of case law relating to unfair contract terms could be the cause of that rise to hermeneutical solutions to professionals and brokers in the consumer confusion that the law 39/89 and Regulation 452/90 are intended to prevent. Nevertheless it can be noted that the interpretation of Articles. 1469 bis et seq d.c. provided by the Commission for the Establishment of the role of mediators established by the Milan Chamber of Commerce was so prudent and timely to get the approval of both the real estate brokers' associations and those of consumers.