IL CONTRATTO TURBATO: UNA PROSPETTIVA RIMEDIALE

The thesis introduces and illustrates contractual disturbance. A contractual disturbance occurs when surprising events reveal themselves during the execution phase of the contract, leading to doubts regarding the applicability of a specific rule, whether contractual or statutory, and the identification of a potential substitute rule. In a strong sense, disturbance does not concern all contracts, but only those that are strongly negotiated, meaning those in which the agreement is the result of a dialogue of wills. The aim of the research is to clarify how contractual disturbance should be addressed using the tools of legal criticism. The reasoning is not conducted according to the rules of deduction, nor according to those of inference, but rather from particular to particular, that is, as reasoning by paradigms. Through an examination of the cases in which the legislator has averted the risk of the occurrence of a disturbance by establishing an appropriate provision to deal with the potentially disruptive effects of supervening events, the need to set up the reasoning from the bottom up, starting with remedies, is ascertained. In the second chapter, the remedial techniques chosen by the legislator in the provisions studied in the first chapter are reviewed. This allows, on the one hand, to discern their regularity and, on the other, to highlight how their varying effectiveness is intimately linked to the context in which they are applied. Finally, regarding the specific issue of creating a rule capable of healing disturbance in its strongest sense, the enhancement of mediatory remedies and settlement is proposed. These approaches are also examined in light of further inquiry into the legal criteria that should guide a competitive discussion between the parties, conducted with fairness and good faith.