Il contratto di swap: profili sistemativi e rilevanza del vizio

Subject of deep doctrinal considerations and center of an intense debate of jurisprudence, the theme of swap contracts is typified by the problems related to its structure, legal nature as well as to the right spotting of the applicable penalty depending on the existing violation. The work is the result of an analysis of the dominant jurisprudence nowadays dominant that seems to abuse of the concept of real cause alongside with the one of the worthy of the pursuit interests. A certain systematic stretch thus emerges, in the event that not all that results improper or somehow vicious can automatically results as invalid or as unworthy of tutelage. It almost seems that the jurisprudence, as it cannot proceed with the declaration of nullity directly from the violation of the behavioural standards, defines, in terms of cause or of unworthy, anomalies that do not have any relations with them. On this way, nevertheless, the proliferation of an invalidity of juridical matrix is legitimated, the most of the time as the result of valuation in terms of values. However, a profound difference between structural defect and the one affecting the relationship exists, in the way that in the first case the contract will be invalidated, while in the second one the illegal behaviour will determine consequences of different type.