Tecniche elettive di tutela del contraente - Abstract tesi di specializzazione

If we consider the period between the issuing of Italian Civil Code (1942) and nowadays, we can point out that the phenomenon of negotiation has known a deep juridical and cultural evolution, which goes over the edges of the Italian civil law, because it concerns the whole Europe.On the background of this evolution we can perceive a fundamental demand for justice, which can be satisfied through a more intense protection of “weak” subjects. Such an evolution is outlined in the first part of the work. A particular attention is dedicated to two key factors. On one hand, the introduction, in the 1948's Italian Constitution, of a new, revolutionary, princple of substantial (and not just formal, as in the previous order) equality. On the other hand, the progressive process of economical, political and juridical integration carried out by the European Union and its institutions. In a diachronic perspective, some relevant moments of this evolution can be individuated in a renewed sensitivity of the major authors for concepts like “status” (which has been reinterpreted in a constructive and non discriminating way, and set off in connection with the idea of “weak subject”), and in the entry, in the positive legislation, of new concepts and figures like “abuse of a dominant position” or “the consumer”.The second part of the work is dedicated to an analisys of the processual and substantial tools of protection nowadays available for the weak (contracting) party before any contractual abuse, on the basis of the possibilities offered by the complex system resulting from the coordination of specific remedies and general principles.To conclude, in theme of contracts it is possible to define an evolutional trend related to tools and techinques of protection: in the past they were mainly aimed to remove the contract and its effects (e.g. invalidity, resolution, rescission); nowadays the preference is given to techniques which allow the contract to survive, after the removal or substitution of those clauses which are (or even may be) detrimental for the weak party. In this sense, we can properly speak about “elective” techniques of protection: in many cases the subject whom the protection is destined to can choose between removing an abusive contract or otherwise maintaining it, leading it back to equity. And he can make this choice considering his own particular and specific interest.