Logica dello scambio e contrattualità : la società per azioni di fronte alla cirisi

The paper maintains that “contractualism” still provides the best conceptual pattern in which company law can be framed. “Contractualism” does not imply any special protec- tion of the shareholders’ interest, not even the absence of rules, mandatory ones included. “Contractualism” implies instead that company law ought to be interpreted as a means to facilitate the conclusion of contracts (among investors, managers, creditors, etc.), to balance the interests of the contracting parties, to protect third parties from negative externalities. This conceptual model offers an interpretation of current Italian and European law, better than the one offered by competing models as institutionalism (strong or weak) or system theory. Even the legal aspects of the events that led to the financial crisis can be explained by the “Faustian bargain” between investors and managers, better than in any other way. Some difficulties presently faced by the same contractarian model are finally illustrated.