Violazione di norme imperative e nullità del contratto

Translated title of the contribution: [Autom. eng. transl.] Breach of mandatory rules and nullity of the contract

Research output: Book/ReportBook

Abstract

[Autom. eng. transl.] Object and purpose of the monograph is the systematic reconstruction of the notion of imperative norm relevant for the purposes of the judgment of nullity and illegality of the contract. In the absence of a legal definition, the examination of the applicable law in the event of a violation has made it possible to identify the distinctive elements of these provisions in a way in the unavailability of the protected interest (regardless of whether they belong to the entire community or to a specific category of subjects) on the other hand in the prohibitive content of the violated precept, which expresses a disapproval of the order with respect to effects that otherwise the act of autonomy would be structurally capable of producing. From this perspective, the imperative nature of the rule and the consequent nullity find concrete recognition at the outcome of a narrow positive law investigation, which relates exclusively to the protection choices made by the legislator and is therefore independent of any judgment of congruity on the part of the interpreter. The eligibility of those processes of hetero-integration of the law (cogent) on which instead part of the doctrine grounds the so-called virtual nullity or the use of good faith as a rule in itself suitable to invalidate the contract, while it is admitted conversely is denied. the extension or teleological reduction of the mandatory rule based on the assessments of opportunities already made by the legislator. However, the proposed solution does not end in a merely positivistic interpretative model, but requires that legislative policy choices conform to the metapositive values recognized by the Constitution. In this perspective, the art. 1418, co. 1, Civil Code is "reread" as a closing rule to guarantee contractual autonomy with respect to the self-referential solutions of the interpreter who, not being universalizable on the basis of a "systematic" criterion, would end up concretizing the risk of a new positivism, that of the contingent valuations of the newspaper.
Translated title of the contribution[Autom. eng. transl.] Breach of mandatory rules and nullity of the contract
Original languageItalian
PublisherJOVENE
Number of pages388
ISBN (Print)88-243-1475-9
Publication statusPublished - 2003

Keywords

  • analogia
  • autonomia contrattuale
  • buona fede
  • contraente debole
  • contratto
  • disciplina del mercato
  • frode alla legge
  • illiceità contrattuale
  • indisponibilità
  • invalidità
  • norme imperative
  • norme penali
  • nullità
  • nullità virtuale
  • tutela costituzionale

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