Ineffective contracts, restitution and the change of position defence

Abstract

The paper, moving from a cross-border case and with a comparative law perspective, addresses which is the operative rule of Restitutionary claim resulting from an ineffective contract, assessing whether it would be achievable, under Italian Law, the same results of the “Change of Position Defence” under common law. The topic relates to the broader issue of allocating costs incurred by the party who performed a void contract in reliance on its validity, for which, under Italian Law, guidance could be given by Section 1328, paragraph 1, second part, of Italian Civil Code.