Contracts of Individuals Who are Incompetent Without Guardianship and the Interpretation of Article 428 of the Italian Civil Code: Is the Court of Cassation Wrong?

Abstract

This paper aims at demonstrating that excessive protection of incompetent people can produce unintended negative consequences. Both in the Italian system, which is examined here in depth, and in American common law, a contract can be annulled if there is bad faith of behalf of the party who is not incompetent. However, a party in bad faith could offer an incompetent person a contract that does not produce a prejudice and could, in fact, be beneficial for the incompetent party. If the contract can be annulled, and if the prejudice occasionally occurs, the incompetent party can request a contract annulment. Conversely, when the contract produces a benefit, it can be retained by the incompetent party. However, under conditions in which a party in bad faith does not offer the incompetent party a contract, it could bring about a prejudice , and in this way the incompetent party is damaged. Over-protection can produce unintended adverse consequences.