Nuove prescrizioni di forma e disciplina del contratto

Progetto: Research project

Dettagli progetto


The issue of legal formalities in contract formation has recently regained importance, both in the Italian legal system and in those of other European Countries. The change results from new legislation promulgated by the European Union (the "EU"). The EU directives for the harmonization of contract law, and in particular of consumer contracts, are heavily informed by rules regarding formalities. The changes resulting from those directives are twofold: (1) some types of contracts that were formerly permitted to be oral or in writing are now required to be written only (e.g. contracts for banking and cash management services, brokerage contracts, subcontracts, tourist packages, etc…); (2) legal requirements regarding the form of contracts have changed from merely providing a traditional form for the contract to requiring a comprehensive description and explanation of the terms of the contract. In fact, European law is increasingly concerned with the content of contracts – which is quite possibly the most interesting feature of this trend. Yet, the European provisions do not dictate the terms of the agreement, which depend on the reciprocal or mutual assent of the parties. Instead, the European provisions require the terms of the agreement to be entirely, clearly and precisely stipulated in the contract. Formalities concern not only the contract, intended as the final document, but also those acts – and, sometimes, those behaviors – that contribute to forming the contract. This includes the information provided by a professional to a consumer about the terms of the agreement.Notwithstanding the vast importance of formalities in contract formation, there is a paucity of provisions concerning the remedies to be imposed, should the formal rules be broken. This gap appears discordant with the "effectiveness" standard that is the consistent objective of the Court of Justice.Therefore, European contract law leaves legal professionals with the difficult task of determining the remedies that should be applied when the formal rules have been broken. The need for remedial guidance is especially pronounced in cases involving physical or virtual trading shares, bonds, warrants and other financial products in the marketplace. In these cases, judges struggle to distinguish between legal formalities, rules of enforceability and liability rules. The decision n.26725 (19.12.2007) taken by the Supreme Court of Cassazione doesn’t appear to have solved the problem.The research team of Palermo will focus on this complicated matter by extending the investigation further than a mere description of the main features of legal formalities – which is all that has been accomplished until now. The research team will investigate: • The content of the formal requirements in the European contract law in order to point out the relationship between the increasing use of form and the function of formal requirements. By highlighting the link between legal formalities, their functions and rules of contract formation, the research team will try to develop a scheme to use in the inquiry of proper remedies.• The use of formalities in the Italian legal system, in light of the approaches taken by European and Italian legislative bodies. Through this investigation, the research team will be able to compare the use of formalities that resulted from internal changes and those originated from the European legislation, in order to verify how those kind of development had been influenced by the roman tradition and the evolution of formal rules contained in the Justinian code.After det

Layman's description

The research team of Palermo will investigate the evolution of the use of formalities in contract law with a special emphasis on the "new-formalism" trend in European legislation. Requirements of form are likely to continue to play a prominent role both in transactions involving consumers and in business to business contracts.The nature of formal requirements will have to be given further thought.Despite the complexity and fragmentation of established provisions in the Italian legal system, the research team will attempt to organize the most recent developments in the use of legal formalities into a unified whole. To accomplish this goal, the research team will assess the main features and functions of formalities and the role they play in contract formation. Once a frame of reference is established, the research team will analyze the connections and schisms between the formalism of prior codes and that of the current one; specifically by considering the developments in the use of formalities introduced subsequently. These developments are not episodic or exceptions but are closely related aspects of the same process.The analysis will provide a starting-point for the examination of the relevance of formalities in contract formation, and their effects. Once the research team has defined the role of formalities in the formation of a valid and binding contract, it will focus on the newly recognized link between additional formalities and void contracts. The goal is to use this link to provide remedies for the problem that exists as a result of the paucity of provisions that can be used to rectify the breaking of formal rules. Therefore, it will be possible to resolve the current impasse of having legal formalities without clear remedies. Through their functions, legal formalities become an instrument of market governance.With reference to the commitments and goals previously stated, the research team will take the following steps:• Critically assessing the formal rules established in the Italian legal system; including the civil code as well as the detailed post-code legislation.• Selecting and analyzing the formal rules adopted by European law, with a special reference to the provisions that appear to support a broader concept of legal formalities in contract formation. Further attention will also be placed on the formal rules regarding the content of a contract.• Comparing the provisions, or lack thereof, adopted by the Italian legislature in the area of remedies for the breach of formal rules with those provisions established by EU Directives, and those established by other European Countries (UK, Germany, France and Spain, in particular).• Analyzing the most relevant and interesting studies on the issue.• Placing the new formal rules inside the realm of contract law and its effects.• Analyzing the changes in the system that originated from the results of the investigation, with special reference to the link between "new formalities" and void contracts, and to the techniques used to validate a contract that was initially defectively formed with respect to the formal rule.
Data di inizio/fine effettiva1/1/08 → …