I PATTI LIMITATIVI DELLA RISOLUZIONE PER INADEMPIMENTO NEI CONTRATTI DI ACQUISIZIONE DI PARTECIPAZIONI AZIONARIE

Nowadays, the proliferation of English-speaking contracts is undoubtedly on the increase in the whole Europe. The growth of this phenomenon entails the spread of contracts conceived and drafted on the basis of a common law model, but governed, from time to time, by the law of a different European country. This trend is becoming considerably widespread and commonplace even within the Italian panorama. My research will focus on the sale and purchase agreement for the transfer of relevant participation in a corporation, which is used every day by the majority of the Italian companies for the sale or the acquisition of their business. When the parties agree that the contract they have entered into “shall be governed by the Laws of the Republic of Italy”, the Italian practitioner shall decode the text of the share sale and purchase agreement using concepts and doctrines of the common law systems, and retrain the whole contract according to the Italian law. This procedure might be very complex as it may encounter many obstacles. In the first place, because in the Italian law there is a lack of discipline of the share sale and purchase agreement. Secondly, because the said contract may contain standard clauses that directly clash with mandatory Italian rules. For this reason, if a dispute arises between the buyer and the seller, the Court should first assess whether the provisions of the contract are valid or not under Italian law. This attempt to analyze the validity under Italian law of Anglo-Saxon boilerplate clauses represents the core of my research, which intends to focus its attention on the termination of contract for non-performance in the context of the share sale and purchase agreements. In particular, the issue on which I intend to concentrate my research is the validity under Italian law of the clauses that provide for the compensatory damages as the “Exclusive Remedy”. Indeed, in civil law jurisdictions, the preferred remedy for breach of contract is a Court order that the breaching party perform its agreement, and damages constitute a substitute for performance. On the contrary, in England and in the United States an award of damages is the usual remedy for breach of contract. In this sense, in the common law world an order for specific performance is the exception. This explains the reason why, even in the share sale and purchase agreements, damages are often awarded as the sole remedy to compensate a claimant for loss, injury or detriment resulting from a counterparty’s failure to perform the contract. The Italian legal system allows the parties to protect themselves against defaults of the non-performing party, by adjusting as needed the whole discipline of the termination of contract. Though, the Italian law does not take into consideration the complete exclusion of the termination in case of non-performance. Certainly, the Italian Civil Code does not set forth specific rules about the invalidity of the clauses that exclude the termination for non-performance; however, the solution of the said matter cannot be given in a so straightforward manner. After the study of the remedies that the Italian contract law provides to the non-breaching party in case of a breach, the analysis emphasized the necessity of performing a comparative study of the principles of English and American contract law. Indeed, for the purposes of my research it was essential to scrutinize the circumstances that induce the parties in the common law legal systems to agree to restrict the variety of optional remedies to choose from in case of a breach. With this respect, it had been necessary to understand for what reasons in England and in the United States the lawyers write contracts that grants the non-performing party an exclusive remedy, although the law provides the possibility to seek for specific performance. Therefore, I conducted a thorough study of the exclusive remedies of common law, in order to identify the solutions adopted in the Anglo-Saxon countries for the maintenance of the contractual balance, despite the exclusion of other possible cumulative remedies. To conclude, I tested the Exclusive Remedy clause, together with the whole context from which it derives, and compare it with the “material rules” of Italian contract law, i.e. the rules that forbid or prevent a certain result, irrespective of the means by which that result is obtained.