Scotto di Carlo, Michele (2023) La derogabilità del principio consensualistico. [Tesi di dottorato]

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Abstract

The article 1376 of Italian Civil Code provides for «principio consensualistico», which regulates the circulation of wealth. It establishes the suitability of «consenso delle parti legittimamente manifestato» to bring about the transfer of rights covered by law. That transfer of rights may take place at the same time as the parties'will is expressed, or at a later date. In fact, the parties may defer the purchase of an asset deducted in contract through the typical schemes set by Italian law, or carry out complex economic transactions that are not regulated by national legislator. The parties may decide to effect the transfer also with an atypical unilateral act, which constitutes the fulfilment of an obligation assumed with a previous contract, in compliance with the conditions laid down in article 1322 of Italian Civil Code. In this way, the parties realize the circulation of wealth differently, since they esclude the sufficiency of the agreement to produce the transfer.

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