DISCIPLINA DELLA NULLITÀ CONTRATTUALE E PARADIGMA DELL'OPERATIVITÀ A VANTAGGIO

This work aims to analyze the various hypotheses of voidness introduced by European private law in order to ascertain whether, in light of their specificity, they can be considered autonomous figures, enacting a system expressive of a different rationality to that underlying the hypotheses contained in the Italian civil code; in particular, it aims to ascertain whether these figures may be considered remedies to guarantee and protect the proper functioning of the European single market. The pro-competitive purpose served by the economic policies of the European Union reverberates in invalidation techniques, which see the voidness entrusted with the task of reacting to the disturbance of the freedom of will caused by the structural imbalance of power that characterizes transactions in the market economy. The first chapter introduces the rules relating to the voidness and voidability in the Italian civil code and their historical background. The critical analysis of the traditional, structuralist approach to voidness, strongly influenced by the theory of the type, leads to the adoption of a functionalist perspective, which provide a theoretical grounding to the idea that the contract, even if void, is legally relevant and that ineffectiveness is the means by which the legal system, if deems it necessary, prevents private regulations contrary to its founding values from being translated into a juridical bond with the force of law between the parties; hence the idea that voidness is designed to allow control over the private autonomy and that ineffectiveness is only one of the possible consequence of voidness. The second chapter reviews the various hypotheses of voidness introduced by the European private law, in order to identify the main differences that exist with respect to the general discipline referred to in Articles 1418 ff. of the Italian civil code; the uniformity of the legal framework that governs these figures shows a remedy aimed at protecting the instrumental interest of the party whose freedom of will, being in a condition of technical weakness, is threatened. Therefore, is outlined a regulatory microsystem in which the ineffectiveness that follows voidness must be limited, where possible, to the sole agreements and clauses in which the violation of an instrumental interest of the weak party is concretized; this solution is the most appropriate to achieve the objective adopted by the European legislator, which is assumed to be the elimination of the imbalances caused by information asymmetries. The third chapter identifies, in terms of interpretative hypothesis, a solution respectful of the “functioning to the advantage of” standard in the event that the voidness is total; the idea that ineffectiveness has always been a purely incidental consequence of voidness will allow to envisage the possibility that it must be modulated in order to ensure that the protective function, summarized in the “functioning to the advantage of” standard, operates on a substantial level as well as procedural.