La deroga preventiva agli effetti della risoluzione per inadempimento

The title of the thesis is ‘the preventive derogation of the effects of the termination of contract for breach’. To be more precise, the question is ‘if and to what extent the parties may agree ( to limit, expand or rule), at the time of the conclusion of the contract, on the effects of its termination for breach’. This research may serve to better understand, in a more realistic way, the several reconstructions proposed with regard to the termination of the contract for breach and to catch, beyond the technical and formal mechanisms of retroactivity and irretroactivity, the critical points of the rules of the effects of the termination and its economic impact. The introduction offers an overview of the existing guidelines with regard the Italian law on the preventive derogability of the effects of the termination of a contract. Moreover, it explains the research plan, with the outline of the logical connection between the following four chapters. The first chapter deals with the legal basis of the termination of a contract for breach. According to the author, the preferable thesis is that the termination would be a remedy for the protection of the functional sinallagma. Once having confirmed that the functional sinallagma is the basis of the termination for breach, the next problems concern the effects of termination for breach under the Italian law. In order to deal with this kind of problems, the second chapter examines the principle of retroactivity and the Italian rules on restitution. The study is mainly focused on the question of compatibility of the institute of ‘indebito’ with the termination for breach. The third chapter deals with the fundamental question of the research, namely the question whether retroactivity is a necessity or a fiction, under both European law and Italian law. The conclusion of this chapter is that the principle of retroactivity in Italian law is not a necessity, that is, an ontological choice, but a pure fiction. We can therefore imagine that, even in currently Italian law, the termination, in reality, does not conclude the contractual relationship. On the contrary, a further contractual relationship takes over, on a continuous line, with the aim to regulates the restitution as subject of ordinary obligations. Therefore, the general rules on obligations apply, rather than those on “indebito”. Once challenged, as just said, the necessary presence of the principle of retroactivity, the latest part of the research deals with the identification of the space reserved to private autonomy. So, in the fourth and final chapter, the question should be: can we change the effects of the termination of the contract and, if such the case, to which extent? In the light of the results achieved in the previous chapters, it is confirmed that, as regards the contractual relationship, the parties may, at least in principle, regulate the subsequent moments of the termination, without prejudice of the contractual sinallagma. The beginning of the fourth and final chapter examines certain groups of cases in which the clauses that exclude totally o partly the restitution should be considered fully valid and enforceable, since the parties are still allowed to maintain the balance of their mutual relationship. The last part of the fourth chapter is dedicated to the definition of the limits to private autonomy. According to the author, there are, basically, three limits: the regulation of contractual liability (i.e. Art. 1229 c.c.), the existence of the “cause concrete” and, finally, the limitation of private punishment.