Gli obblighi di informazione a carico dell'intermediario finanziario: natura giuridica e rimedi

The object of my Ph. D. thesis is the regulation of information duties in financial services contracts, specially refers to the consequences of the breach of these information duties and to the finding of the related legal remedies. In this last topic specially it’s possible to feel the necessity to ensure the real protection of the investor. The discipline of information duties represents only one of the several interesting topics of this matter, as for example the issue of the subjective requirements of the financial brokers, either the issue concerning the written form of the financial service contract requested ad substantiam, or about the legal nature of the information duties. These matters have been examined in the first part of the present study. A particular analysis has been dedicated to the analytic meaning and to the legal entity of this duty. On the basis of this research, we assert that art. 21 Testo Unico della Finanza (t.u.f.) concerns a real counselling duty, different from good faith obligation strictly intended. The approach to the civil law remedies in case of breach of art. 21 t.u.f. is currently the object of a large and boundless debate, even after the judgement nn. 26724 and 26725 of 19.12.2007 of Sezioni Unite of Cassazione civile. Still now the Italian Courts sometimes recognise the voidness of the contract, sometimes the breach of the contract and sometimes the compensation of damages. The analysis of the issues is very interesting from a comparative law perspective upon the German solutions. The German literature and the case law suppose, in the first instance when the contracting parties meet each others, the conclusion of a consultancy agreement (Beratungsvertrag), on one hand confirming the qualification of this information duty as a counselling obligation, on the other hand preferring – in relation to the remedies - the compensation of damages for breach of contract. This study has also the purpose of proving the reasons which have led the newest Italian case law and some Authors in a not conforming approach regarding the judgement of the Supreme Court, more specifically trying to outline and analyse the different approaches to the solution of the Sezioni Unite of 2007, mainly referring to the exclusion in this case of the invalidity remedy, in regard of the traditional non-interference principle between validity rules and behaviour rules.