Unfair exploitation. Invalidità e giustizia contrattuale.

According to a widespread view the topic of contract justice should play a central role in the reflections of the doctrine. It would require the pursuit of two protection needs: the one of the weak part in the contractual relationship and the one of the contractual balance. In this sense the starting point of the thesis is the examination of unfair exploitation, a construct disciplined by some European codification projects and, primarily, by the Draft common frame of reference. In this figure the abuse of the other's condition of weakness and the imbalance of the terms of the contract have been made elements constituting a wide invalidating case, placed within the vices of consent. The model outlined is, therefore, that of a fair contract to the extent that it is concluded as a result of a fair procedure; this confirms the idea that a procedural vision of the justice of the contract is the one to be pursued, assigning, on the contrary, no role for the contractual imbalance considered per se. The means to pursue contractual justice, therefore, is identified in the repression of abuses in the pre-contractual phase. In light of this, the thesis goes on to examine the institutions that in the Italian legal system allow to approach to this result, by delineating the current perimeter of contractual invalidities deriving from the recurrence of the hypotheses of mistake, fraud, violence, «rescissione» and incapacity. Finally, the scope of the rule set by art. 1337 of the Codice civile and the consequences caused by the violation of the good faith in contrahendo are examined. The conclusions are in the sense that, even in the absence of such a general prevision which is the one regulating unfair exploitation, the Italian system draws on the same results, although through sveral institutes and remedies. It should be noted however - in the view of the rules concerning pre-contractual liability - the absence of an equation between fair and valid contract.