Учебный год 22-23 / Alpa_Italian_Private_Law_University_of_Texas

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which this situation is abused, such as by imposing oppressive contract conditions or arbitrarily severing contractual relations, etc.

A contract for work and skill (Arts 2222ff civil code) is characterised by work or services undertaken for payment usually by an individual not employed by the other party. It is a residual type, distinguished from independent contracts by the usually personal nature of the work, typically carried out by an artisan or similar sole undertaking. It is, mutatis mutandis, regulated in the same way as independent contracts.

The subject matter of a contract of this type can be intellectual work, and this has its own regime found in both the civil code (Arts 2229ff)) and statutes regulating the exercise of professions (such as lawyers, architects, financial advisers, etc). The rules – a constant topic of plans for reform – are intended mainly to uphold the reputation and prestige of the liberal professions, whose members must be enrolled in the appropriate professional register. Any non-enrolled person purporting to provide a professional service cannot sue for payment (Art 2231 civil code). The level of payment reflects not only the amount of work carried out, but the standing of the profession (Art 2233 civil code). If the professional service involves resolving problems of ‘special difficulty’ the provider can only be held liable for loss or injury to the client caused by fraud or gross negligence (Art 2236 civil code).

In a transport contract (Arts 1678ff civil code) the carrier undertakes in return for payment to move people or goods from one place to another. In passenger transport (Art 1681 civil code) the carrier is liable according to the general law for lateness and non-performance, as well as for accidents to the passenger during the journey and loss or damage to personal possessions. This last is stricter than normally obtains – the carrier can only escape liability by demonstrating that he had taken all the measures that could reasonably have been expected to avoid the injury, loss or damage – and applies also to transport that is free in the sense that no money technically changes hands, for example, transport of employees to their workplace, but does not apply to courtesy or ‘friendly’ transport where the carrier has no interest and there is no contractual relationship, such as when a person gives a lift out of friendship or (perhaps to a hitchhiker) out of courtesy. In transport of goods, on the other hand, the carrier is liable in any case where loss or damage occurs to the goods unless he can prove that it was caused by natural events or factors beyond his control, or by defects in the goods themselves or the way they were packed, or by the fault of the consignor or consignee (Art 1693 civil code). The civil code rules cover transport by land. They are supplemented by statute and provisions of the navigation code for sea and air transport.

7.17.6. Bank contracts

Because banking, the taking of deposits and issue of credit, is so fundamentally a matter of public interest, it is kept under rigorous control by the supervising authority, the Bank of Italy, but the new Single Text (legislative decree no. 385 of 1 September 1993) has dropped the features of a public monopoly that characterised its predecessor and has opened the system to competition. The rules on banking contracts are complex and scattered between the civil code, the Single Text and numerous statutes. An important role is played also by banking practice, subject to self-regulation through the Italian Banking Association (ABI), which issues model contracts to which the various institutions adhere. Statute has sought to improve the position of the client, subjecting banking operations to the principle of transparency. One example of this is the duty to show the effective overall annual service charge (TAEG), in practice the total cost of the operation to the consumer, including interest, fees and other charges, expressed as a percentage of the amount of credit granted in any consumer credit operation, or of credit advanced to a consumer for professional or commercial purposes in the form of deferred payment or other financing.

The main kinds of banking operation include a bank deposit (Art 1834 civil code) by which the bank acquires the property in a sum deposited by the client and undertakes to repay it on request or at the end of a specified term. Typically, deposits and withdrawals will be recorded in a savings deposit book, which can be a bearer document or usable only by the account holder (Art 1835 civil code). By an advance of credit (Art 1842 civil code), the bank undertakes to provide the client with access to a sum of money in excess of any amounts deposited, for a fixed or indefinite period of time. By a securities deposit (Art 1838 civil code), the bank provides the client with an administration service covering his or her securities (shares, government bonds, debentures, and so on), organising payment of dividend, interest and cash-in receipts. A safe deposit box (Art 1839 civil code) allows a customer to deposit documents and valuables and, in return for payment for the service, the bank guarantees the security of these items, limited to an agreed amount which can be increased upon payment of a higher premium.

The most common form of relationship between bank and customer is the current account which allows the account holder to withdraw previously deposited sums at any time, usually by means of a cheque. This last should not be confused with a similarly named contract, regulated by Arts 1823ff civil code, which obliges both parties to keep an account of reciprocal credits, considering them unavailable until the account is closed.

assume obligations (in bilateral and multilateral contracts) or the obligations may be assumed by one party alone (in a unilateral contract).

Consent is formed when a promise is matched by acceptance. Contractual promise is known as an offer.

Offer is a unilateral act which binds the person who makes it even before it is accepted by the other party. The party to whom it is made may accept, refuse or ignore it, but the offeror is bound until the offer is revoked, accepted or refused. Acceptance is also a unilateral act. It must be communicated to the offeror before a contract can be considered effective.

What is the exact moment when a contract comes about; when can it be said to have been concluded? In abstract terms, many answers are possible. One can choose a solution that binds the contracting parties from the moment acceptance is issued (the issuance theory). Or it can be placed at the moment acceptance is sent (the crucial moment in English and North American law). Or it can be placed at the moment the offeror reacts to acceptance, that is, when receipt of notice can be inferred, or, finally, at the moment of actual notice of acceptance.

Legislation has adopted an intermediate point between the last two: ‘the contract is concluded at the moment that the offeror becomes aware that the offeree has accepted the offer’ (Art 1326 civil code). It is, however, presumed that the offeror had such notice at the moment that the communication reached his address (Art 1335 civil code). Late acceptance, received after the expiry of a time limit set by the offeror, may be recognised as effective if the offeror immediately notifies the acceptor that such is his intention (Art 1326 civil code).

If the offeror requires acceptance in a specified form (for example, in writing), acceptance is invalid if it does not comply (for example, if made orally). The means (telephone, telegraph, telex, letter) is, however, not significant, even if the offeror has specified one.

For a contract to be concluded, the acceptance must match the terms of the offer (as when A offers B 10,000 chickens at €0.50 apiece and B replies, ‘I accept’). If the acceptance purports to vary those terms (as when B replies, ‘I’ll take 5000 chickens at €0.45 apiece’) the acceptance is not valid as such; it becomes a counter-offer, and the original offeror, now the putative acceptor, has to decide whether to accept or refuse. If he accepts, the contract is formed when the other party has notice of his acceptance (Art 1326 (final) civil code).

Acceptance does not have to explicitly state but can be inferred from sufficiently conclusive conduct, so if the acceptor begins carrying out the terms of the contract, this constitutes unequivocal conduct clearly indicating his acceptance and so the contract is concluded. In this case, if the offeror so requests, or if the nature of the dealing so permits, or such is the custom, and there is no reply to the contrary, the contract is

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concluded in the place where and the time when execution begins. In this case the acceptor must communicate to the party, not acceptance as such, but the fact that execution has begun. If he does not he can be liable for damages (Art 1327 civil code).

These rules apply to bilateral and multilateral contracts. In the case of unilateral contracts, the offer leads to a concluded contract once the offeree has notice of it (Art 1333 civil code). Unilateral acts (such as proxy) are effective as soon as the person to whom they are directed has notice of them (Art 1334 civil code).

The demands of the modern economy have imposed very simple and rapid practical rules for the conclusion of contracts. Self-service establishments are a prime example: the customer serves himself, chooses the products and goes to the till to pay. There is no express declaration of any wish to purchase, all is implied. The important thing is the customer’s conduct, which is unequivocal. By choosing the product and going to the till with it, he or she has shown an intention to buy.

This then is one instance of conclusive conduct. Another is when the customer gets on a bus to go home. In boarding the bus, he or she manifests the intention to use the public transport service, and is thus accepting the offer to the public comprised by the bus running and thereby offering the service to the community at large.

Contracts can also be concluded rapidly in other situations, for example, when use is made of technologies like telephone, telegraph and the internet. Contracts concluded by these means are also said to be made by ‘absent parties’. They are not, however, considered absent and distant by the rules; they are deemed present to make the law simple and facilitate relations. The use of pre-drafted forms also speeds contract formation. When an insurance company presents a customer with a standard form of policy for the compulsory insurance of his car that it has already drawn up, the customer has only to accept the conditions as stated or else refuse them. Usually he accepts, and signs the form. With his signature the contract is concluded.

There are now rules in place to protect consumers who have consented to contracts hurriedly due to ‘aggressive’ sales techniques (such as door-to-door selling) or technologies employed by the vendor (such as tele-sales and e-commerce) by allowing them to revoke, within quite short time limits, the consent they have already manifested. These cooling-off periods are often supplemented by other legal provisions. To these various measures are added other forms of protection of non-professional contracting parties, including a duty to inform, prescribed forms; these generally feature short time limits, applicability only in favour of the consumer, and their irrenounceability on the part of the latter. These various provisions are now comprised in the Consumer Code (Decree no. 206 of 2005).

Silence is legally significant only when the law so provides, such as is the case with tacit acceptance of an inheritance (Art 476 civil code) or extension of a contract beyond its term (automatic extension of lease and lodging, Art 3 of law no. 392 of 1978), and so on.

There are, however, cases where silence is omissive conduct, and is significant from the point of view of resultant harm: if one party fails to disclose in such circumstances, the other party can seek the discharge of the contract. Such is the case with insurance policies, where the insured person fraudulently withholds information material to the insured risk (Art 1892 civil code). Or else damages may be sought for incurred where circumstances vitiating the contract have been concealed (Art 1338 civil code on negotiations). If fault by the other party and prejudice arising from his silence can be demonstrated, an action for damages also lies: suppose A lends money to B having been solicited to do so by C, then is unable to recover the money because C has not told him that B is insolvent, dishonest, or on the verge of bankruptcy.

Once the contract is concluded the parties may still go back on their decision and decide to undo it. This is termed mutual dissent, but is actually a contract whose content is the precise opposite of what the original contract provided. Since it cancels the terms of the previous contract it is a substitutive contract.

7.18.2. Negotiations, steps to the formation of contract

The conclusion of the contract, the meeting of minds arising from offer and acceptance, is sometimes, though not necessarily, preceded by a phase of negotiation. Information on the economic operation is exchanged, proposals are made and modified, the prestations are discussed and refined, agreement is postponed, and the negotiations may take a long time because the matter is complicated or because large amounts of money are at stake. This will apply, for example, to redevelopment contracts in which an enterprise undertakes to build a whole neighbourhood, a port or industrial installation.

Within the negotiation process certain phases can also be discerned, from the first contacts between the parties to the final stage where a memorandum may be drafted outlining the most important terms of the eventual contract.

Negotiations, even in this final phase, do not bind the parties to the points set down in the memorandum. If the parties wish to be bound at this stage, they can conclude a contract incorporating the points agreed on, and supplement it later with the terms as yet unresolved. This point-by-point memorandum, therefore, has only documentary value in evidencing a contract already agreed on when it contains the essential elements of such a contract and it can be shown that the parties definitely

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intended to be bound, and if their subsequent conduct demonstrates an intention to turn the memorandum into a concluded agreement.

The fact that negotiations do not bind the parties does not mean that the parties in the course of negotiations are free to behave as they wish. The law provides that the parties must conduct negotiations in good faith (in an objective sense, that is, according to the principles of fairness and propriety: Art 1337 civil code). This general principle applies to the situation where, for example, one party explicitly engenders legitimate expectations and reliance on the part of the other and then breaks off negotiations without good cause; or where, without informing the various parties, he conducts simultaneous negotiations with more than one person, and then chooses the most advantageous offer, thus betraying the trust of the party who, in ignorance of the true state of affairs, thought he was about to conclude a contract.

Freedom of negotiation, in other words, must be exercised with sincerity. If a justified trust is created and then the other party withdraws from negotiations without good cause, he incurs liability. It is debatable whether this liability is contractual or extra-contractual in nature. The debate matters because of practical issues such as prescription and burden of proof. The prevailing view, based on the argument that since there is no contract no contractual liability can arise, holds that liability is thus extra-contractual.

Damages do not compensate for the entire loss suffered by the wronged party, otherwise there would in effect be no freedom to negotiate and people could be dissuaded from negotiating for fear that the costs of withdrawing could be excessive. Instead, they reflect the so-called negative interest, that is, the expenses resulting from the unjustified withdrawal and any loss of property suffered.

This is a different situation from the one governed by Art 1338: ‘a party who knows, or ought to know, of any impediment which would make the contract void and does not inform the other party, is liable to pay damages for loss incurred by another party who through no fault of his own has put trust in the validity of the contract.’ In this case too, the other party must be without fault, but breach of fair dealing is not in this case manifested as insincere or arbitrary behaviour (such as withdrawal from negotiations), but, more seriously, in the awareness of a reason, not communicated to the other party, why the contract is void. Such reasons could include the sale of an item not belonging to the purported vendor, or sale as ‘building land’ of land on which building is not in fact permitted, in order to increase the sale price. In this case too, therefore, damages are limited to the extent of the negative interest.

Until a few years ago the public administration had no pre-contractual liability for negotiations with private parties. Case law held that the public administration was incapable of unfair or insincere

behaviour, because its institutional role was the pursuit of the common good, and it could thus not be bound in the process of putting a contract together. Recently, however, the potential liability of the public administration has been affirmed in cases where the private party’s reliance has been disappointed in an unjustified manner. The private party can claim nothing, however, if the contract is not finalised by reason of obstacles to realisation (such as a supervisory body withholding approval) which become apparent during the course of the administrative procedure designed to lead to the decision to accept an offer. The private person is deemed to be familiar with the administrative process, and any misplaced belief is his own fault.

7.18.3.‘Delivery’ in real contracts. Deposit, sequestration, loan for use, loan

‘Real’ contracts (not to be confused with contracts producing real effects such as sale) are a heterogeneous and residual category, almost an exception in the classification of contracts. They are ‘real’ in the sense that they concern the use of a thing (Latin res) and in forming them the delivery of the thing is central.

So long as the thing remains undelivered, the contract is not concluded. Delivery is thus a sine qua non of the contract: it is this feature that makes this category of contract exceptional, as the Italian system bases conclusion of a contract on simple consent and consent can have the effect of transfer of property (such as in sale and purchase).

The other important aspect of this category is that, just because of this anomaly, real contracts are typical: none can be formed in a manner different from that prescribed by the code. Thus an exception is made to the principle of the parties’ freedom of transaction in the creation of new configurations and types of contract (Art 1322(2) civil code). The tangible contracts are loan for use, loan, deposit and pledge, to which many would add sequestration and bank advances.

Deposit (Arts 1766ff civil code) is a contract whereby a party takes an item of moveable property into his custody and assumes the duty of safe-keeping and to return it intact on request, without being allowed to use it. So-called irregular deposit (Art 1782) is different in that the item deposit is money or fungible goods, so the bailee may use them and they become his property. His duty is to return only items of the same type and quality (tantundem eiusdem generis). A deposit contract is presumed to be gratuitous unless the parties’ contrary intention can be inferred. If for reward, it is a contract for paid services. If it is gratuitous, however, any blame attaching to the bailee for loss or deterioration of the object is less severely penalised (Art 1768). If on the other hand the bailee took the object in as a matter of pure courtesy (courtesy deposit), he can only be

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liable in the event of fraud or gross negligence. A special set of rules, that cannot be derogated from, applies to deposit of objects in a hotel (Arts 1783ff civil code). The hotelier (in common in this regard with managers of theatres, cinemas, discotheques, bathing establishments, restaurants, etc) is responsible for the loss, theft or damage to possessions the customer has brought, so long as this was not caused by the customer or his companion(s) or force majeure. Liability is unlimited if the hotelier is at fault or if the item had been committed to his safe-keeping (or if he refused to accept custody of items such as money and valuables that he was under a duty to accept). Liability is limited in other circumstances to one hundred times the cost of one day’s stay.

Sequestration is a means of protecting rights as part of the judicial process. It is a precautionary measure, designed to protect parties who fear that the property that is the subject of litigation may deteriorate or perish or be sold. In other situations it is applied to a debtor’s property to guarantee a debt.

When used in the first case above, it is termed ‘preservative’. The creditor may seek preservative sequestration of the debtor’s goods; he may also seek it in relation to goods acquired from the debtor by third parties (Art 2095 civil code). Once the creditor has obtained an order he is not bound by any alienation of the sequestered goods (Art 2906 civil code).

Sequestration can be consensual, by the consent of both parties, outside the ambit of legal proceedings. It is ‘a contract by which two or more persons entrust a thing (or more than one thing) that is the subject of dispute to a third party, who will keep it in his custody and return it to whichever of the parties is entitled to it when the dispute has been resolved’ (Art 1798 civil code). The stakeholder must keep the thing safe, and is under a duty to administer it. He has the right to remuneration, reimbursement of expenses and disbursements in connection with the safe-keeping and administration (Arts 1800, 1802 civil code).

Loan for use, together with gift, is the most important kind of gratuitous contract. Whereas gift transfers the property of the subject matter, the loan for use (also called a gratuitous loan) simply involves the owner’s consent to another using the borrowed item.

It is not, however, a mere ‘licence’ because loan for use is a contract ‘by which one party delivers to another moveable or immoveable property, so that the borrower can use it for a time, or for a stated purpose, with a duty to return the same item; it is of the essence that loan for use is gratuitous’ (Art 1805 civil code).

The importance of the gratuitous element is that, it impinges on the way loan for use is regulated. It is the object of the contract, which has been said to consist of the willingness to provide for the contingent need of another by allowing the personal use, temporary and free of charge, of a thing.

Loan for use, a typical unilateral contract, imposes duties only on the borrower. He or she must keep the thing safely with the diligence of a reasonable person and may only put it to uses laid down by the contract or to which the thing is normally put. Otherwise the lender may seek the immediate return of the thing together with damages (Art 1804 civil code). The borrower is also responsible for loss of the thing if it could have been avoided or made less likely by his using an item of his own instead, or if he has subjected the thing to a different or longer period of use (Art 1805 civil code). The borrower has no right to reimbursement of expenses unless they are unusual expenses incurred to preserve the thing (Art 1808 civil code). He must return the thing at the time stipulated in the contract, or if no term is stated, then upon request by the lender (Art 1809 civil code).

The lender must make good loss or damage incurred by the borrower through defects in the thing, if he knew of them and did not warn the borrower (Art 1812 civil code).

Since loan for use is based on the reliance that the lender places in the borrower, the death of the latter does not permit his heirs to continue the contract. The lender may demand the immediate return of the thing (Art 1811 civil code).

Sometimes the loan comes accompanied by conditions. If these detract from the gratuitous nature of the prestation, there is created a non-standard contract on sufferance. This usually consists of the free use of immoveable property, with costs of maintenance being paid by the borrower.

The most important tangible contract in commercial life is the loan. It is a contract whereby one party delivers to another a specified sum of money or other fungible, and the other undertakes to return equivalent things of the same kind and quantity (Art 1813 civil code).

A loan contract entails the transfer of property in the money or goods, and so has real effects (Art 1814 civil code).

This derives from the fact that the things lent are fungible and their use entails alienation and circulation.

A loan is presumed to be for reward. Unless the parties agree otherwise, interest (not usurious) must be paid on the loan. It may be gratuitous, however, in which case any term for repayment is presumed to operate in the borrower’s interest. If defects in the things cause loss or damage to the borrower, the lender (if the loan is gratuitous) is liable only if he knew of the defects and did not warn the borrower (Arts 1816, 1821 civil code). Loan is also a unilateral contract. The duty that arises is that of returning the property.

It is a matter of debate whether delivery must be actual, or whether it can simply consist in legal availability to the borrower, for example, whether the sum of money has to be delivered directly or whether it can