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Featured Articles. In a sense, any obligation might be said indeed to be pro- vided by legislation and, on the other hand, any obligation is produced by one single or many facts or acts, which can properly be characterised as the source of such legal effect. These are the three pillars and the drivers of a modern general law of obligations, even though they might not encompass some minor sources scattered in civil codes or elsewhere.
Under Italian law, the same kind of contract is termed as opzione and governed by art Cod civ, while a promessa unilaterale, being a unilateral juridical act, is governed by art ff Cod civ.
For a survey of the debate on the point, see Deshayes, Genicon and Laithier n 24 33 art An affirmative response could be grounded on the wording of the new article 1 , which divides juridical acts into those based on agreement conventionelles and those that are unilateral, thus possibly suggesting that juridical acts based on agreement are acknowledged even when they are different from contracts.
Since this conceptualisation has been held by the reform as merely descriptive, as explained in the Report to the President of the Republic,49 the new text of article focuses instead on the different kinds of legal effects which can be produced by a contract, namely that of creating, modifying, transferring or extinguishing an obligation. Also in this respect, the new text of article exhibits some similarities with that of article of the Codice civile, which however enumerates three instead of four kinds of legal effect a contract may produce: to create, to regulate and to extinguish a legal relation of economic relevance between the parties.
If a contract were not to be binding between the parties, it would undermine its social and economic sense, so that it would lose its own rationale as a legal device. For a critical assessment of this choice, see Alpa n 4 6.
This specific requirement is omitted from the French definition of contract, since it is based on obligation, which the civilian tradition has shaped as a patrimonial legal relationship. Nonetheless, nearly all the most challenging and attractive innovations provided for by the reform pertain substantially, albeit not formally, to commercial transactions in this broad sense.
Apart from some minor cases, the paradigm is the business transaction and, therefore, it may be questioned whether it is really sound that the same issue is governed differently by the Code civil, by the Code de commerce61 and by the Code de la consommation. Also, framework contracts are typically commercial contracts and the right to fix the price unilaterally, which is governed by the new articles and ,65 is usually agreed in favour of businesses.
Last but not least, renegotiation of con- tracts due to a change of circumstances, introduced by the new article ,66 is a typical issue for business contracts.
The aspiration of the general part of a modern law of contract, which is to mirror the common core of principles and rules applicable to private agreements of economic content, accounts for the centrality gained by business transactions in the development of private law in the course of the twentieth century. But, since that time, the change of economic outlook, substantially backed by the European Union, has 59 Deshayes, Genicon and Laithier n 24 And see Ch 8 above P Stoffel-Munck.
See also below, n 85, for reference to Italian law. In this respect, the Italian Codice civile of — is of particular interest, since it eliminated the distinction between civil law and commercial law, embrac- ing both within its provisions.
In particular, commercial and civil contracts are governed together in the same book, the fourth, of the Codice civile. As antitrust and competition law are paramount for contracts which are bilaterally commercial business-to-business contracts , so consumer law is paramount for contracts which are unilaterally commercial business-to-consumer contracts.
General contract law is therefore destined to acquire a regulatory function, which makes it prevail over the law governing special contracts, thus reversing the trend established in continental Europe during the s. The regulatory function of rules governing special contracts was the outcome of antagonist policies, which had been growing in number and had been giving protection to interests of particular social classes or groups.
By contrast, the more recent shift in economic outlook has swept away this juridical particularism, so that it is now the general part of contract which commands a regulatory attitude and regains its primacy within the legal system.
Design of the New Law: An Italian View Although deriving from the previous legislation, the design of this new chapter looks questionable, insofar as it mingles the physiology the formation of an agreement between the parties and the pathology of contract its nullity. The constitutive elements of contract are said by article to be four: 1 agreement of the parties; 2 cause; 3 object; and 4 form, where prescribed by legislation on pain of nullity.
By contrast with the relevant French provision, therefore, form is included, although on the condition that it is required by a legislative provision under penalty of nullity of contract; on the other hand, the capacity of the parties is excluded, since it does not pertain to the constitutive elements of contract as a legal act. The new article prohibits a contract from derogating from public policy, either by its stipulation or by its purpose, whether or not this was known by all the parties.
On the other hand, it is clear that the reform intended to leave untouched the developments of French contract law that had been made using la cause.
It might be said that, if la cause represents the concrete reason why the parties have entered into a contract,75 then by definition any contract is provided with a cause of its own, because the very fact that the parties intended to conclude it implies that they shared a reason to do so.
Insofar as the new article relates the prohibition against derogating from public policy to the purpose of the contract, it corresponds to two different provisions of the Codice civile. The distinction between cause and motive, on the contrary, is no longer relevant under French law. The relationship between the two provisions is not substantially different from that existing between articles and of the Codice civile, even though there are some major differences between the Italian and French rules themselves.
The content of the duty of disclosure provided for by the new article is potentially too wide and raises some concerns of policy. An unequal distribu- tion of information between the contracting parties is a necessary requirement of private autonomy and freedom of enterprise, so it should be removed by law only in cases of market failure. That is typically the case as regards standard contracts, particularly in business-to-consumer transactions, where the structural asymme- try of information between the contracting parties creates the risk of a so-called adverse selection.
If the rationale of precontractual liability is shifted to the violation of a duty of disclosure, the path is opened to the co-existence of a valid contract between the parties and compensation for the con- tract being different from that which the damaged party would have concluded had she been appropriately informed by the other.
Italian case-law came to the same conclusion,80 which is approved by the majority of scholars. In this way, precontractual liability may be said not merely to be aimed at safeguarding a reliance interest negatives Interesse, or Schutzinteresse , but to move towards the protection of an expectation interest positives Interesse, or Leistungsinteresse of the damaged party.
The same rule has been advocated by Italian scholars and followed by Italian case-law, particularly as rendered by the Corte di cassazione. Design of the New Law: An Italian View the new article 2 provides that such a mistake is a ground of nullity if the donor, had he realised the mistake, would have not performed that act.