Modificazioni soggettive del rapporto obbligatorio e garanzie reali

The study about the subjective side of the legal relationship is pivotal in the theory of the obligation. The question is whether the modification of one or even both parts always entails its extinction or whether its objective unity is preserved. The answer has been different depending on historic ages. In the Roman law, the variation of any subject entailed the extinction of the relationship and the constitution of a new obligation (subjective novation). Such solution has been opposed by modern legislators, for whom, in case of modification of the personae, not the extinction of the relationship, but only the change of one of its elements happens. As for the property secutities, especially the mortgage, the essential general principles are the specialty and the accesority. The latter feature is crucial in case of subjective modification of the relationship, and this emerges in the dissertation about the singles typologies of the Italian Civil Code that determines it, in both active and passive point of view. In order to quicken the transfer of the credit, in the 2007 the “Bersani Decree” (on the portability of the loan), that allowed to remove the ties of the credit circulation in the banking relationships area, was approved. The features of the modification of the obligatory relations, however, can undermine the effectiveness of the Bersoni reform. This is the reason why some scholars support a vast review of the whole mortgage law, removing, in the light of what occurred in other European systems, the requirement of the acessority of the tie. Nevertheless, due to the risks related to this reform, refining the mechanism of improvement of the portability is considered preferable, while removing the criticalities without compromising the certainties of the present system, of which the acessority of the mortgage is an important foundation.