Non tutto ciò che è "virtuale" è "razionale": riflessioni sulla nullità del contratto.

The essay analyzes the criteria under which a contract may be void for contrast with a mandatory rule. In particular the judge has to check that legal protection is not left to the disposition of the parties, even where the law protects not the public interest, but the weaker party. In this case only the protected party is entitled to the action of nullity, but the contract cannot be validated and the nullity can be declared ex officio, by the judge. However the contract is void only when its content is contrary to the statutory prohibition and not when the law prohibits the mere pre-contractual behavior of one or both parties. In this sense art. 1418, co. 1, cod. civ. is an expression of a more general principle that distinguishes validity rules and liability rules.