Cass. Sezioni Unite 18214/2015: i giudici di legittimità sulla «interpretazione assiologicamente orientata» delle nullità per vizio di forma

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Abstract

[automatically translated] Confirming the trend now quite clear he wants the issue of negotiating formalism the most interesting special invalidity laboratory, the judgment of the United Sections here briefly commented adds a significant piece or discounted at a still lively debate: not so much and not only for ' outcome which arrives in limited matters of housing lease, but because of the ease with which wields a very "hot topic" of contract law. The first question on which the Court is asked to rule is easy to solve but articulated argument: where, for transactions of buildings used for residential purposes under Law n. 431/1998 for the write to be understood for purposes of validity or test purposes. The answer is already in the standards: Article. 1 co., 4 by providing that at the conclusion of valid leases it be in writing, clearly suggests that the formalization of the agreement is set to substance. The judges, however, take the opportunity to stop the reasons for the legislative choice, evoking the functional perspective, regardless of the form, it is a recent conquest and not entirely peaceful scientific reflection. As for the second question, the United Sections of the Supreme Court stated that the of residential lease agreement without the written form is affected by absolute nullity, detectable office, pending the journalism ratio of tax evasion, except the situation in which the verb form has been imposed by the lessor, because in this case it would be "protection void" in favor of the tenant, only he reportable. In essence, the tenant is required to prove the "moral violence" and thus suffered the abuse: in this case the contract will be void, but the nullity is to be understood as "relative" that is exclusively operated by the tenant. Otherwise, if the oral form is freely agreed upon, for the nullity must be considered absolute, detectable office and not curable. In any case, the alleged abuse can not be considered ex lege, in reason of the imbalance in bargaining power subsisting between landlord and tenant, but must be tried by the tenant. but the nullity is to be understood as "relative" and that is exclusively operated by the tenant. Otherwise, if the oral form is freely agreed upon, for the nullity must be considered absolute, detectable office and not curable. In any case, the alleged abuse can not be considered ex lege, in reason of the imbalance in bargaining power subsisting between landlord and tenant, but must be tried by the tenant. but the nullity is to be understood as "relative" and that is exclusively operated by the tenant. Otherwise, if the oral form is freely agreed upon, for the nullity must be considered absolute, detectable office and not curable. In any case, the alleged abuse can not be considered ex lege, in reason of the imbalance in bargaining power subsisting between landlord and tenant, but must be tried by the tenant.
Original languageItalian
Pages (from-to)1-11
Number of pages11
JournalDIRITTO CIVILE CONTEMPORANEO
Publication statusPublished - 2015

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