PER UNA RILETTURA DELLA PROPRIETÀ RISOLUBILE ATTRAVERSO IL PRISMA DELLE SITUAZIONI GIURIDICHE CONDIZIONATE

This paper deals with the “resolvable property”, which is the property right of the contractual party who has transfer under a suspensive condition or who has acquired under a resolvable condition. This category of property, which reveals the impact of the time on the conditional contract, has been marginally studied both in Italy and in foreign systems. The uncertainty of the occurrence of the conditional event on the positions of the contractors outlines the resolvable property. The paper leads to the resolvable property following the demystification of the dogma of the retroactivity of the condition. The Italian law system’s exceptions weaken the retroactive explanation of the condition which, in any case, ends up being irrelevant, if we analyze the discipline of the condition by ruling out the idea of retroactivity as a fiction. The central issue of the work is the admissibility check of the resolvable property among the real rights’ Italian system, by comparing the category with temporary property. The resolvable property does not affect the numerus clausus principle since its content is shaped directly by the pendency of the condition, by the consequent application of legal regime governing the conditioned contract and, only mediately, by the contractual parties’ autonomy. Anyway, the importance given to the condition’s impact does not imply the recognition of the resolvable property as a destined property under the Article 2645-ter of the Italian Civil Code. Finally, the essay analyses a practical application of the category by its comparison with the sale under the Article 1523 of the Italian Civil Code.