Sicari, Giovanni (2008) La clausola solve et repete nel sistema delle obbligazioni negoziali. [Tesi di dottorato]
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The conventional mechanism today encrypted in the Art. 1462 of the Civil Code and traditionally known as "Solve et Repete”, allows the contractor the right to paralyse other’s exception in order to prevent the enforcement of these obligations from being prevented or delayed.
Faced to an exception, the creditor may deliver the debtor a compliance solution inviting him to repeat the performance in case a judicial assessment may find the accomplishment terms as not conclusive.
As a result of the pact, the parties reinforce the guarantee of satisfaction of the creditor’s beneficiary bond, thus affecting the quality of provision itself.
Within the field of individual’s Right, the Solve et Repete was firstly studied to propose the outlines of Art. 1462 C. Code operational limits; secondly, the aim was understanding if its rules could play a systematic role in bilateral imperfect contracts as well.
The research started from many municipal law statutes.
Historically, there is however a widespread opinion that the pact may have emerged for the first time in late-nineteenth century Italian contractual practices.
Indeed, the medieval jurists had already measured with the Solve et Repete, reflecting both on the clause’s consequences and operational limits.
Through the historical analysis of both doctrine and jurisprudence of the XIX and XX centuries, the principles of Art. 1462 of the Civil Code has been codified.
A general principle - emerged from the Norm itself - has been also adopted in various origins institutions and practices such as the Art. 1528 C. Code on documents sale, maritime contractual affidavit and Due-on-demand Clause used in sureties, guarantee policies or personal assurance contracts.
On the basis of the Constitutional Court deliberations, the fundament, operational structure and ratio differences between privatistic institution and fiscal Solve have finally been appreciated.
As a matter of fact, these reflections convinced the Judge on the conformity of the privatistic Solve with the constitutional principles compared to the illegitimacy of the tax institute.
By focusing the attention both on the wide application of Art. 1462 C. Code and the specialistic doctrine and jurisprudence, the freeze or failure exceptions that may result from Solve, have been highlighted together with those exceptions which are indifferent to the pact.
The Solve’s most interesting profiles are related to exceptio inadimpleti contractus and to execution suspension due to a change in the asset’s terms.
However, both doctrine and jurisprudence discussed the possibilities to suspend not only exceptions, but actions as well.
In any case, analysed the interaction between Solve and the main actions and exceptions granted to the contractor, the remedies are not likely to be delayed or deferred since they all seem to be structurally related, in different perspectives, to the report based on contract’s causal fundament.
In appearance, the “Solve et Repete” mechanism is capable of putting into danger the sinallagmatic relation between corresponding benefits whereas, far from its expressed or interpreted limits, the Solve has also set the boundaries beyond which the provision assisted by guarantee could become abstract.
Furthermore, the Principle seems to provide defence for casual contracts defining the framework within which the case can still perform its original functions.
Outside this field, the link between the deal and his cause could be so weak up-to disappear, affecting the validity and effectiveness of both the pact and any deal building its typical function on the pact itself.
The power of suspension of sentence granted to the judge by the second paragraph of Art. 1462 C. Code was therefore deeply analysed. Objectively, several aspects have been reporting the concept of good faith in the exercise of power granted by the pact.
The trial aspects of the pact discipline were completed by the study of the reserve condemnation and repetition of the benefit, subsequently established as embezzled.
Through the analysis of these issues, the interpretative gap between those who give the pact a valid case and those who perceive a predominant substantial institution, has been filled.
Adhering to such an interpretation it is easier, nevertheless, the process feedback of the pact cannot be denied.
The Solve et Repete vexatory character has also involved the treatment of problems related to the Arts. 1341 and 1342 C. Code and to the discipline dictated by the code of consumption as well.
After the main theories of the causa were studied in a comparatistic way, the research went into the relatively unexplored territory of the connection between Solve et Repete and imperfect bilateral deal.
The Solve was believed to have a part in debt recruitment, contract delegation, expropriation, mortgage deposits and loans as well in modal donation and expensive mandate.
The more interesting and also problematic field of investigation is the demand guarantee with specific reference to first guarantee and to the well known.
Summing up the research results and assigning a systematic range of Solve et Repete, it seemed reasonable to test whether it is possible to reach the conclusions shared by doctrine and jurisprudence, about the validity of the guarantee autonomous contract as atypical figure, different from the demand guarantee.
The answer was not completely negative.
In that regard, the autonomous contract should be reconducted to the first guarantee since they have the same cause, function and goals.
Consequently, far from what law has practiced so far, the atypical deal, should be considered casually valid only on condition of enlarging the number of non-freeze exceptions or if redrafted regime is changed.
Had an autonomous deal a different role from the first guarantee by avoiding any beneficiary exception based on guaranteed relationship, the unlawfulness of the deal should be soon declared.
The autonomous deal would in that case exceed the limit of maximum abstraction allowed by the rules, giving the Solve et Repete the possibility to apply to a typical contract.
Even if these results have been unanimously disowned from jurisprudence and doctrine, they never based their reflections upon the Art. 1462 C. Code.
These conclusions seem to be the main result of the analysis carried out taking as a central point the only codified institution whose affinity may be encrypted with the operational mechanism of guarantee autonomous contract.
The study on Solve et Repete had the merit to question whether there is an incurable dichotomy between the system designed by the 1942 legislature whose Art. 1462 C. Code is both expression and referring point, underlying some of the main processes and adjustments made by jurisprudence throughout the years.
Should such a dichotomy be confirmed, positions on autonomous contract could hardly be fully satisfactory from a systematic point of view, without a specific intervention of the legislator.
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|Tipo di EPrint:||Tesi di dottorato|
|Dottorato (corsi e scuole):||Ciclo 20 > Scuole per il 20simo ciclo > GIURISPRUDENZA|
|Data di deposito della tesi:||30 Luglio 2008|
|Anno di Pubblicazione:||30 Luglio 2008|
|Parole chiave (italiano / inglese):||solve et repete, garanzia a prima richiesta, fideissione, contratto autonomo di garanzia, causa, sinallagma, 1462, eccezione di inadempimento, sospensione nell'esecuzione per mutamento nelle condizioni patrimoniali dei contraenti, limitazione alla facoltà di proporre eccezioni|
|Settori scientifico-disciplinari MIUR:||Area 12 - Scienze giuridiche > IUS/01 Diritto privato|
|Struttura di riferimento:||Dipartimenti > pre 2012 - Dipartimento di Diritto Comparato|
|Depositato il:||02 Dic 2008|
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