Principio consensualistico e atto di adempimento traslativo

Once admitted, in light of the freedom of contract, the purely defaulting nature of the art. 1376 c.c., this work aims at understanding the extent to which the principio consensualistico can actually be waived in favor of transfer rules characterized by the separation of titulus and modus adquirendi. The obligation to transfer in a technical sense, in fact, may be considered admissible only if it does not lead to an infringement of the principio causalistico and the privity of contract. Because of this dual systematic requirement, an interpretative - reconstructive inspection of the transfer will only lead to recognize in the pagamento traslativo a unilateral juridical act that can be refused - i.e. negozio giuridico unilaterale rifiutabile -, according to the provision of the art. 1333 c.c. Juridical act to which, in light of the art. 1324 c.c., extends the provisions of art. 1325, n. 2, c.c. The causa of the pagamento traslativo, therefore, is into the act and consist of the causa solvendi, that can find an objective external condition in the obligation to transfer.