Contract without numbers and without adjectives. Beyond the consumer and the weak enterprise

Abstract

Abstract The essay examines the law of contract under the current system of Italian and European sources. Traditional categories based on the qualities of contractors (consumers, customers, weak companies) have difficulty in sorting out the new phenomena; rather, we need a new method to regulate contracts, governed by a set of sources from which to draw elements of compliance with the rule and new forms of protection, through an activity of deconstruction and innovation that Italian Courts have already begun, using some instruments in particular. They have used the legal concepts of ‘concrete cause’ and a conflict with mandatory rules, as instruments for the control of legality and validity. They have used constitutionally guaranteed rights and duties, as limits to contractual freedom. Finally, they have used good faith as a criterion of liability in the assessment of behaviour both pre- and post-contract signature, with an autonomous function with respect to the assessment of contract validity.