With the first question, the undersigned Order asked whether the conduct of the client who, after receiving the said estimate via email, without formally accepting it, entrusted the member with various certification procedures and paid only some invoices issued in accordance with the estimate, could constitute conclusive conduct with regard to the acceptance of an estimate, having as its object the fees for the activity of “certification of building credits”.
In this regard, the National Council stated that the relationship between the professional and the client falls within the contract for the provision of intellectual work pursuant to art. 2230 of the Civil Code and that for the purposes of concluding the contract, a particular form “ad substantiam” is not required, unless the assisted party is a Public Administration. From this it follows (see, among many, Cass. civ. no. 20902/2023) that “where a professional deduces the performance of a professional work relationship as a title for the right to his own compensation, it is necessary to provide proof of the assignment of the relative task in any form suitable to unequivocally demonstrate the will to avail himself of his activity and his work by the agreed client for the payment of said compensation”. It is also a general principle of the legal system that contracts are concluded with the exchange of consents, constituted by the contractual proposal (generally represented by the assignment of the task), as well as the acceptance (also expressed by “facta concludentia”) by the professional, who performs the requested service.
Consequently, in principle – it is stated in PO 51/2024 -, «it is possible to consider that the acceptance of the contractual proposal can also be manifested by conclusive behaviors on the part of the client, among which can also be included the assignment of the task after receiving a quote. However, the factual investigation into the client’s behaviors can only be left, case by case, to the Order».
With the second question, the undersigned Order asked for “clarification” on the conduct to be adopted in the event that it receives a request for an opinion on a professional fee in which only for some activities the fees indicated by the member are compliant with the parameters set out in Ministerial Decree 140/2012, while for others they are not, as higher fees are indicated.
Well, the National Council observed that the formulation of opinions on the liquidation of fees relating to professional services of members is a function attributed to the Council of the Order by art. 12, co. 1, letter i), Legislative Decree no. 139/2005, which pursues a purpose of public interest, exercised in the interest of the professional category and to protect the community that addresses it. It consists of a technical assessment on the identification of the activities carried out by the member and on the appropriateness of the compensation requested for the professional activity with respect to Ministerial Decree no. 140/2012.
Consequently – it is stated conclusively in PO no. 51/2024 – «the Order, having noted the incongruity with respect to the parameters of Ministerial Decree no. 140/2012 of the individual activity items, will have to bring the relative compensation back to the amounts indicated by the said Ministerial Decree and, consequently, issue an opinion of congruity for an amount lower than that indicated by the member. This, unless the compensation indicated in an amount higher than Ministerial Decree no. 140/2012 has been expressly accepted in writing by the assisted party, it being known that the agreement on the compensation is free».
