ITALIAN CONTRACT LAW
LexInter | July 24, 2013 | 0 Comments

ITALIAN CONTRACT LAW

Italian contract law, which, like French law, derives from Roman law, is a written and codified law. The conventions regime is contained in articles 1321 to 1469 of the Civil Code, the principles of which are very close to French law.

This similarity, based on the same roots, is encountered both in terms of formation and execution or even termination of the contract.

Article 1321 of the Italian Civil Code defines a contract as an agreement entered into by two or more parties with the aim of creating, organizing or terminating a legal relationship of a patrimonial nature.

Article 1325 lists the elements necessary for the formation of the contract: consent of the parties, lawful cause, object and form, when prescribed by a legal provision on pain of nullity, in particular: contract of transfer of ownership of immovable property, partnership or partnership contracts involving the enjoyment of real estate for a period exceeding nine years or for an indefinite period.

The contract may contain, if the two parties have come to an agreement, the general clauses providing in favor of a party of limitations of liability, the right to be freed from contractual obligations or to suspend the execution of the contract or even arbitration clauses or derogations from the jurisdiction of the courts.

The principles of contractual relations are as follows: the contract has the force of law between the parties; it can only be terminated by mutual consent or for a cause admitted by law; it can only produce effects with regard to third parties in the cases provided for by law. It should be noted that the contract produces two types of effects: real and binding, depending on the object and cause of the contract. When the contract relates to real rights, the transmission of these rights takes place by the only exchange of consents; on the other hand, a contract with binding effects does not entail an immediate transfer of a real right, but creates a binding legal relationship. Regarding the transfer of ownership, the Sabatini law of November 28, 1965 provided for special provisions concerning the sale with the retention of title clause if certain legal conditions are met (the sale must relate to new machines, in particular). In this case, the seller must deliver to the other party a certificate of origin containing the names of the contractors, as well as the conditions of sale and contractual clauses. It should be noted that this law does not apply to relations between a foreign seller and an Italian dealer. as well as the conditions of sale and contractual clauses. It should be noted that this law does not apply to relations between a foreign seller and an Italian dealer. as well as the conditions of sale and contractual clauses. It should be noted that this law does not apply to relations between a foreign seller and an Italian dealer.

With regard to the settlement of disputes, it seems prudent to insert in international contracts concluded with an Italian party an arbitration clause, which makes it possible to avoid the length of the Italian procedure (between 7 and 12 years), while an arbitration procedure lasts on average only 6 months. However, Italian case law excludes questions relating to trademarks and patents from the scope of arbitration. Two types of arbitration are possible: the arbitrato rituale and the arbitrato irrituale(legal / contractual arbitration). The first is governed by articles 806 to 831 of the Code of Civil Procedures and ends with an arbitration award which binds the parties and, to the extent that it can have the exequatur, is then equivalent to judgment. The second procedure has the value of a contract and must be provided for in all its details by the co-contractors. The arbitration award rendered within the framework of contractual arbitration cannot be enforced. It should be noted that legal arbitration is more successful than contractual arbitration due to two legislative interventions in 1983 and 1994 (law of January 5, 1994) which carried out an important “grooming” of the Code of Civil Procedures and made the legal arbitration procedure very attractive (except for the tax cost which is quite high,

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