Principles of private law

REPRESENTATION(Art. 1387 Civil Code)

Power thanks to which acts performed by one person (agent) fall directly within the sphere of another person (principal)

Potere in virtù del quale gli atti compiuti da un soggetto, chiamato rappresentante, ricadono direttamente nella sfera del rappresentato

The most important case in point that we have is a company. because there is a person, an agent, who has the power to make contracts in the name of the company.

To have this directly we need to have the power of attorney (procura), which is an unilateral act thanks to which the principal gives the agent the power of representation and this is the external representation → third parties can know that you are the agent of a company thanks to the power of attorney: the power of representation is given by the power of attorney (procura è la fonte dellarappresentanza).

But there is also the problem of internal relationship between the agent and the principal, because if I give you the power of

An attorney can decide to use the power of representation or not, and I cannot oblige them to use it. In this case, we would need a contract that allows me to oblige the attorney to use the power of representation. If they fail to do so, they would be breaching the contract and I can ask for damages. Therefore, the power of attorney is related to the third party. A mandate, on the other hand, is a contract between the agent and the principal that obliges the agent to use the power of representation. Without a mandate, the agent can have the power of representation but can do whatever they want with it.

A mandate is a contract between the agent and the principal, in which the agent is obliged to use the power of attorney as requested by the principal. The principal is normally required to pay the agent for their services.

Effects of the contract (Art. 1372 Civil Code): A contract has the power of law between the parties, which means that you cannot dissolve a contract without the consent of the other party. There are three ways in which a contract can be dissolved:

1. Mutual agreement
2. Performance of the contract
3. Legal termination

At the time of the stipulation of the contract, you gave a sum of money to the other party to prove your willingness to perform the contract or your good will. If everything goes right, the sum of money will be given back as a down payment (acconto). In case of breach of contract, the party can decide to withdraw and keep the money of the deposit (but cannot ask for damages, as the deposit serves as compensation).

Termination (disdetta): It is a unilateral act that prevents the renewal of the contract, and usually requires a notice.

Non-essential elements: These elements are not essential, so the parties can choose whether or not to include them in the contract, depending on their preferences.

The aim of non-essential elements is to shape the effects of the contract (i.e., when the contract produces its effects) in a way that is more comfortable for the parties.

Condition: A future and uncertain event to which the parties link the

production or the termination of the effects of the contract

The condition can be:

• Suspensive condition: the contract doesn't have effect and if the event happens the contract will start its effect
• Resolutive condition: the contract has effect and if the event happens the effect will be stopped

Mode: it is a clause, usually in a donation or in a contract which has performance just for one party, by which the party decides that you have the right to that good if you use part of it to a specific purpose/to achieve a specific goal

Term: it is a future and certain event by which the parties decide to produce or not the effects of the contract

The parties link the production of the effects of the contract in relation to this term which might be determined or undetermined. The contract can have a:

• Final term of the contract: the contract produces its effect from now until the term
• Starting term of the contract: the contract will produce its effect after the term and in this case

The contract now doesn't have effect

LESSON 17

PRELIMINARY CONTRACT

Preliminary contract is another instrument used to shape the effects of a contract not from the subject point of view but again from the temporal point of view.

The preliminary contract is a contract by which the parties are obliged to stipulate another contract (FINAL contract)

So in the case of the preliminary contract we have 2 contracts: the preliminary contract and the final contract and the parties have the obligation to conclude the final contract because they signed and stipulated the preliminary contract. Therefore, the preliminary contract is a source of obligation and the obligation is to conclude another contract.

When the parties agree that they will conclude the contract but have to postpone its effects then they might consider the preliminary contract.

1. Rationes (ragioni) are the reasons why one party decided not to sign the final contract but to have now a preliminary contract and they are related the need

1. The preliminary contract suspends the power of disposition of the owner, not from the real, but from the obligational point of view, allowing for the possibility of having time (thanks to the preliminary contract) to finalize the transaction.

2. The subject matter (oggetto) of the final contract should be included in the preliminary contract. For example, if the transaction involves a building, it is not sufficient to simply state in the preliminary contract that the buyer is purchasing a building. It is important that the specific features of the building are included in the preliminary contract. This allows the buyer to choose not to sign the final contract if the building does not meet these specified features.

3. The form of the preliminary contract should be the same as that of the final contract, meaning it should be in written form.

4. Registration (trascrizione): Signing a preliminary contract does not automatically make one the owner of the property. The party signing the preliminary contract is the future buyer, and it is possible for the seller to decide to sell the property to another person. However, if the seller breaches the contract, the party who signed the preliminary contract has the right to seek damages. This kind of protection is sometimes necessary.

not sufficient, so if the parties made the registration of the preliminary contract, the party has the right to the good (registration is the case of declarative publication, whose aim is opposability to third parties)

5. Breach of contract: the innocent party can ask the judge to have a constitutive judgement which is the same as the final contract, and so it has the right to the good RESCISSION (Art. 1447 Civil Code)

Thanks to the preliminary contract, parties can shape the effects of the contract but it is possible that it is the law that decides to shape or nullify the effect of the contract with the aim of protecting one of the parties.

In this case there is a problem related to the agreement of the contract: not in the sense of fault/defect or consent, but in this case one of the parties is pushed by the other one to conclude the contract.

Conditions:

1. One of the party in a weakness position
2. Non consistent will 44
3. Disproportion between the performances: in general the law does not

Control if the performances are balance, but it becomes a question of the law if there is something wrong in the formation of the contract (the question is if you are free to decide)

If there are all these 3 conditions you have the right of rescission.

There are 2 cases:

State of danger (stato di pericolo): there are 3 hypothesis

• Danger
• Unfair conditions
• Knowledge to the other party (conoscenza)

State of need (stato di bisogno): there are 3 hypothesis

• Need: not just from the personal but also from the economical point of view
• In the state of need weakness means need
• Ultra dimidium: unfair conditions are not sufficient but we need ultra dimidium, which means that the disproportion between the performances exceeds the double
• Awareness by the other party (consapevolezza della controparte)

In this case the contract has temporary effects, but in this case temporary effect means that within 1 year the innocent party has to decide if it applies for the rescission and if

The judge declares that the contract has the 3 conditions. The contract doesn't have effect anymore if it doesn't apply after 1 year. The contract will have final effect.

The voidable contract can be saved by correcting it: in this case, there is a chance to save the contract which is called equity reduction. It means that the non-innocent party can propose the innocent party to have a remodulation of the relationship within performances, so to delete the part of ultra dimidium. In this case, the contract is safe and cannot be object of rescission anymore.

DISSOLUTION (Art. 1453 Civil Code)

In the first case, there is a genetic fault because the problem is at the beginning of the contract. In case of dissolution (risoluzione), there is a pathological fault contract which was concluded perfectly without any problem, but something happened that changed the relationship between the performances.

When we talk about dissolution, there has to be a party that has an obligation to the other.

oneand vice versa.There are 3 possible events in which the party has a problem related to the proportion of theperformances:

Breach of contract (inadempimento): one party didn’t fulfil its obligation and so there is a problem for the other party. The innocent party has the right to a choice:

• Request of fulfilment: the party has the right to fulfilment and to delay damage
• Dissolution, so the party can ask the judge that, due to the breach of contract of the other party, to dissolve the contract and it has the right to dissolution (to be given back the performance) and damage

The party cannot ask for dissolution in the case of non performance of small importance (case of breach of contract that has small importance) because if a contract is serious one party cannot dissolve it for something that is not important, but can ask for damages.

45OUT OF COURT DISSOLUTION