CLAUSOLE DI FORMA E MERGER CLAUSES

Art. 1352 of the Italian civil code is the only provision specifically dedicated to self-imposed contractual formalism. However, many other provisions indirectly deal with requirements of form, therefore they must necessarily be coordinated with art. 1352. Traditionally, civilians assimilate forms required by law with forms voluntarily adopted by parties, overlooking their deep ontological differences. In an attempt to show the complexity of the research, the first part of the dissertation is an historical examination of formalism. Art. 1352 c.c. is a defective provision; moreover self-adopted forms have also been underestimated by the italian legislator. With this awareness, and without any pretense of completeness, it has been necessary to review the topic in a critical way to better describe a constantly evolving contractual practice. The historical approach has been followed by a comparison of legal forms and self-imposed ones. Teleologically oriented interpretation demonstrates the impossibility of applying the categories of legal formalism (for example the binomio forma ad probationem vs. forma ad substantiam) to self-imposed forms. Since requirements of form can achieve different goals, they can not be described in a univocal way, except in a purely theoretical perspective. The discussion of main problems originated from art. 1352 c.c. has led to the first conclusion: this provision is only a part of a wider and complex phenomenon; for this reason, it isn’t a general rule. This clarification is the essential step to introduce the third issue addressed in the first chapter of this research, namely the nature of form agreements. The analysis of the meaning of "clause" has been followed by a brief examination of main doctrinal theories, to underline the procedural nature of form agreements. The functional approach suggests a careful analysis of interests that parties want to achieve imposing a particular form. Since form terms are often imposed by one party on another, the better determination of the research subject has called for some observations about another very important issue, namely, the relationship between standard contracts and form agreements. The second chapter, dealing with the phenomenon of standardization, wants to clarify whether a unilaterally imposed form term disappoints the weaker party’s expectations or, on the contrary, it’s an expression of the party freedom of contract. This approach underlines the utility of a functionalist dimension, highlighting the multi-tasking role of forms. With specific reference to standard contracts, the awareness of the protectionist trend shown by consumer legislator confirms the importance of this issue. The second part of the chapter has been structured so as to identify specific law cases in standard form contracts that, without presenting the typical features of form terms, constraint the formal aspect of an agreement. In particular, the research focuses on “subject to company approval” clause, notice of insurance claim and the notification of non-conformity in the regulation of the sale of consumer goods. These three examples confirm how self-imposed forms can achieve different goals, namely limiting freedom of contract, limiting and excluding professional liability, reducing consumer rights. Therefore, even if such clauses are different from form agreements, they must be under control of unfairness. Consumer Code provides a description of self-imposed formalism far from the overview offered by italian Civil code. For this reason it is important to take into consideration the relationship between Consumer and Civil code, in order to determine the meaning and the function of art. 33, c. 2, letter. q c. cons.- the only consumer provision specifically dedicated to conventional formalism - that "limits the liability of the professional respect of the obligations deriving from contracts concluded in his name by his agents, or making the fulfillment of these obligations to comply with special formalities." According to civil doctrine, the words “agent” and “these obligations” are the reason for including two different cases in the same provision. In this way, the second part of letter q has been mistakenly regarded as a mere specification of the first aspect, obscuring the real nature of this clause. Since Consumer code is an independent code and not a complementary law of Civil Code, art. 33 is a general rule. Consequently, the presumption of unfairness introduced by letter q doesn’t operate into the limits of the disposition: the identification of parties’ interests allows its broader application. Everytime a standard contract term creates a significant imbalance of right and duties of the weaker party, such a clause should be considered unfair because it satisfies interests that law doesn’t consider worthy of protection. This issue introduces another important topic, the phenomenon of merger clauses introduced in the contract by the stronger party. Considering the experiences and insights offered by the doctrine and the jurisprudence of other countries, particularly of common law, the last part of the research is an attempt to identify common solutions in the world of self-imposed forms. The study of merger clauses demonstrates the existence of some similarities with form agreements. Through an entire agreement clause, the stronger party indirectly requires the written form, excluding extrinsic evidence of pre-contractual statements and future contracts; in this way, since the contract represents the entire understanding between the parties, he limits the rights of the weaker party. But, if it is true that consumer law disallows the use of unfair form terms, for the same reason this conclusion applies also to merger clauses when they share same goals. The phenomenon of self-imposed forms searches for a new approach that puts under control every contract term- both form than merger clause- capable of altering the balance between the contractual benefits in business to consumer relationships.