The limits of the consensual principle and the structure of a contract of obligation in Italian civil law

Abstract

The Italian legal system belongs to the so-called Roman family law. However the distinction between a contract and an agreement, famously applied in French civil law, has not been adopted by Italian legal system. The peculiar features of the concept of contract adopted under Italian law pertain to the fact that, without borrowing from the French Civil Code, nor from the German Civil Code, the Italian definition of contract expressed in art. 1321 of the Italian Civil Code has plain and concise textual meaning, specifying both the nature and legal consequences of contract making. The Italian Civil Code generally identifies a contract with an agreement of the parties concluded for the so called legal cause of the contract understood as the economic and social function of the contract. The regulation concerning concluding and enforcing contracts in accordance with art. 1324 of the Italian Civil Code have been extended to other legal actc, in particular unilateral ones, provided that they are inter vivos and the terms of contract pertain to obligatory or proprietary relations. The paper focuses on the limits of the principle of contractual consent in Italian law. The principle generally refers to the agreement as the general underlying legal condition for validity of any contract. The principle has a significant impact on the legal effects of a potential ex post collapse of the contract due to its’ invalidity in case of the transfer of ownership concerning both personal property rights and immovable property rights.