LA RESPONSABILITÀ PRECONTRATTUALE NELLE OPERAZIONI STRAORDINARIE: UN¿ANALISI COMPARATIVA

The subject matter of this dissertation is the analysis of the regulation of pre-contractual liability, as interpreted and constructed by the case-law and scholars, under a comparative perspective and with a specific focus on m&a transactions. I will specifically consider the Italian, American and English law systems. The choice of the foregoing specific topic stems from the following considerations: (i) first and foremost, the increasing importance of the role played by the negotiation phase, both in general, and with specific reference to the arm’s length transactions in the business field. The entering into a contract (by means of the mechanism of offer and acceptance) is increasingly rare, and is totally absent in the m&a sector, characterized by lengthy and complex negotiations. In this setting, the legal regulation of the pre-contractual stage is of paramount importance; (ii) secondly, the differences, both of the rules, and generally speaking of the approach, existing between civil law and common law systems with reference to negotiations. Two articles of the Italian civil code specifically address negotiations, and both doctrine and case-law on the matter are wide-ranging. Of paramount importance is the issue of unjustified withdrawal, which for long time has corresponded to the main case of pre-contractual liability. Scholars and case-law have subsequently developed other issues: duty of information, indemnifiable damages, parallel negotiations etc. The nature of pre-contractual liability has created a huge dispute, not yet resolved. The first part of the first chapter deals with the main features of pre-contractual liability under Italian law. The second part, instead, analyses the regulation of negotiations in the m&a sector. Here, negotiations have particular relevance, in consideration of their lengthy and complex nature. The concepts related to pre-contractual liability, examined in the first part, will be therefore scrutinized in this specific sector. Of particular importance are those pre-contractual documents, that market practice has developed, such as letters of intent, confidentiality agreement and lock-out agreements. At the end of the chapter we will investigate a recent case ruled by the Court of Milan, which will let us walk through the topics scrutinized, and see how they have been interpreted by the judges. With the second chapter we enter into the common law system. The first part deals with the analysis of the American law system. In order to understand the differences with our regulation, we will start from the definition of contract. Going through the concepts of freedom to contract, all or nothing approach etc. we will better understand the reasons of such different approaches, and why negotiations are not specifically addressed by official legislation we will then turn our attention to the several tools developed by practitioners, with a specific focus on m&a sector again, in order to see how the legislative vacuum has been filled by prelaminar agreements of various denominations. The analysis of the case-law, which adopted different approaches, and of the doctrine, more available to rethink the current regulation of precontractual liability, and open to changes also in a future perspective, results particularly interesting. The chapter closes with the analysis of the English law system, which results to be the stricter one with reference to the possibility to recognize any precontractual liability. We will again start from the concept of contract, to underline how the historical – cultural differences affect the modern approach on the matter. Starting from the leading case Walford v Miles, we will see how, similarly to the American law system, has been developed piecemeal solutions, that is, specific and fragmentary (misrepresentation, unjust enrichment, promissory estoppel etc.). This is consistent with the traditional remedial common law approach, developed in a preponderant way thanks to judges’ work. A remedial law, by virtue of things, can hardly address in an organic way an institution, being more available to develop fragmented solutions. The concept of good faith, therefore, has not been particular diffusion. Also in the company law field, we still can see some reluctance in recognizing any effect to those precontractual documents which should regulate the parties involved in negotiations. Finally, in the third chapter, after referring to the theories developed by the economic analysis of law, as well as by decision analysis and game theory, we will try to identify which of the possible solutions available, results to be the most efficient one, incentivizing reliance and ensuring optimal investments in the negotiation phase. The work ends with the conclusions of the author.