La "decodificazione" giurisprudenziale dell'art. 1419, primo comma, c.c. e le sue fattispecie

This essay highlights a recent trend in the case-law interpretation of Article 1419, first paragraph, c.c., the provision of the Italian Civil Code which deals with the partial avoidance of contracts, such as § 139 BGB and Article 1184-1 Code Civil. This trend is referred to as ‘judicial decodification’ to reflect the newfound nonchalance of some judgements towards that codified rule. In the writing, it will be seen that de facto the case law tends to circumvent the general rule on partial avoidance in order to maintain the contract beyond the limits set by the law: according to which the invalidity of a single clause does not entail the invalidity of the whole contract if the parties would not have concluded the contract without the invalid clause, in compliance with the principle of private autonomy. Thus, the decisions at issue here do not respect the private autonomy of the parties, which is guaranteed by Article 1419, first paragraph, c.c., but pursue other conflicting public interests that are not actually provided for in this provision, such as social solidarity. The author concludes by recommending an interpretative appro- ach based on ‘teleological reduction’ — which leads to limiting the extension of nullity to a part of the contract only in cases where the provision of nullity aims at protective purposes — in order to combine both the ‘modernization’ of contract law and the necessary systematic rigor.