Obbligo di rinegoziazione e adeguamento giudiziale delle condizioni contrattuali

digital

Articolo

rivista	JUS
fascicolo	JUS - 2020 - 1
titolo	Obbligo di rinegoziazione e adeguamento giudiziale delle condizioni contrattuali Duty to renegotiate and judicial adjustment of contract terms
Autore	Renzo Rossi
Editore	Vita e Pensiero
formato	Articolo \| Pdf
online da	11-2020
doi	10.26350/004084_000061
issn	0022-6955 (stampa)

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Descrizione
The paper concerns the change of circumstances in the contract as considered by the latest Italian civil code reform project. In the past, the Italian doctrine, in order to overcome the rigidity of the rules on resolution of contracts, elaborated a preterlegal figure, the ‘‘presupposizione’’, able to free the parties from the contractual bond, similarly to other European legal systems (frustration of contract in common law, Wegfall der Geschäftsgrundlage in Germany, imprévision in France). In case of change of circumstances, the reform project introduces a legal duty to renegotiate the contract terms and the right to ask the judge to adjust the contract in case of lack of agreement. However this duty, derived from good faith, can lead to the risk of an authoritarian intervention by the judge on private autonomy. keywords change to circumstances, frustration of contract, renegotiation, good faith.

Descrizione

The paper concerns the change of circumstances in the contract as considered by the latest Italian civil code reform project. In the past, the Italian doctrine, in order to overcome the rigidity of the rules on resolution of contracts, elaborated a preterlegal figure, the ‘‘presupposizione’’, able to free the parties from the contractual bond, similarly to other European legal systems (frustration of contract in common law, Wegfall der Geschäftsgrundlage in Germany, imprévision in France). In case of change of circumstances, the reform project introduces a legal duty to renegotiate the contract terms and the right to ask the judge to adjust the contract in case of lack of agreement. However this duty, derived from good faith, can lead to the risk of an authoritarian intervention by the judge on private autonomy.