RISOLUZIONE PER INADEMPIMENTO E COMPORTAMENTO CONTRADDITTORIO

The dissertation analyses some problems rising from the rules of the Italian Civil Code on contract termination due to contract breach. The author identifies one specific situation: the conduct of one party that shows its interest into terminating the contract, but afterwards demands the execution of the contract or that, on the contrary, does not react to contract breach, but after a certain period of time declares its intention to terminate the contract. These and similar conducts belong to the category of «inconsistent behavior», a situation in which the law should clarify if the contract is still binding, if the parties may demand specific performance and, more generally, which remedies are at their disposal. Such a conduct is taken into consideration by art. 1453, par. 2, of the Italian Civil Code, according to which the party that has taken legal action to terminate the contract cannot demand specific performance afterwards. The rule is intended to protect the other party’s reliance, but the interpretation of the norm still leaves some problems: is the right to specific performance extinguished by the initiative of termination? In case the request of termination is rejected by the judge, may the party demand specific performance? To sum up: which is the effect on the contract of the behavior of the party? Similar conflicts may be found by examining the numerous cases related to the automatic forms of termination (“risoluzioni di diritto”). The first and the second chapter of the work concern these issues. The first chapter, in particular, after a short introduction on the rules of termination in the Italian Civil Code within the European context, focuses on the interpretation of art. 1453, par. 2, of the Italian Civil Code. The second chapter contains a classification of cases arising from the automatic forms of termination, through which the author tries to identify how courts resolve specific problems. The objective of the research, to which the third chapter is dedicated, is to verify in which cases, according to the correct interpretation of the norms and to the concrete solutions reached by courts, the contract is still producing its effects and when, on the contrary, it should be definitely considered as terminated, irrespective of a judgement. The dissertation moves from the debate — which is inspired by the recent reformations of the BGB and the Code civil — between those authors according to whom termination should generally be the consequence of a notification sent by one party to the other and those according to whom termination should be declared by a judge, except for those forms of automatic resolution regulated by the Italian Civil Code. The theory of a general remedy such as termination by notification is shared by those who point out that the judicial termination of the contract may result inefficient. An analytical study of the rules concretely enforced in courts is needed in order to understand whether the Italian legal system already implies some forms of automatic termination — apart from those expressly regulated — that simplify business relationships. The conclusion is that there is no need for a new form of resolution: an interpretation of the conduct of both parties in conflict based on the interests protected by contract law — especially reliance — may be sufficient to improve the system. The perspective of the «inconsistent behavior» selects both situations in which similar interests are involved and the most efficient remedies.