13. Lesson 13
Thursday, 17 February 2022 16:01
“CAUSA” OF THE CONTRACT
• It is the economic-social function of the contract .
• It is the reason of the financial operations/capital movements of the contract —> it
is a cardinal requirement
It must be analysed related to the contract in a concrete sense, not only by the
contract’s type
—> it makes a certain agreement justifiable in front of the legal system - the legal
system can recognise agreements under a legal point of view only if they have a
valid social/economic function —> the exchange is the heart of the contract
But you must not limitate the definition to the exchange (closer to the Common Law
system - valid only if there is something in return: reciprocity), it’s related also by
social-economic effects and function (essential to support the society, services..)
It varies depending on the type of contract
ex.
○ Sales —> exchange of good and price, neccesary to support the society
○ Lease contract —> exchange justified by modern needs
○ Company contract —> the law gives an instrument to support the economic
activity
—> each contract is characterised by a “causa” (justification and economic-social
reason)
Art. 1322 Contractual autonomy
—> creation of contracts from concrete experience among two people (kind of
contract not given by law in abstract) —> contract with social origin
Dynamic evolution caused by the society - in 1942 they recognised this
elasticity —> you can’t stop evolution
—> in any case we have to verify the causa —> all contracts must justify themselves
in front of the legal system —> in order to produce legal effects
The causa must comply with - when can I say the causa is really valid? :
1. Mandatory rules
2. Grounds of public policy
3. Public moral
[—> core rules of democratic system] the boundary of this definition is quite elastic
(social evolution)
It is deemed unlawful also when, even if apparently lawful, the contract means in
practice to escape the application of a mandatory rule (ex. Contract that enshrines a
fraud; contract that goes against the Criminal law)
Thursday, 17 February 2022 16:01
“CAUSA” OF THE CONTRACT
• It is the economic-social function of the contract .
• It is the reason of the financial operations/capital movements of the contract —> it
is a cardinal requirement
It must be analysed related to the contract in a concrete sense, not only by the
contract’s type
—> it makes a certain agreement justifiable in front of the legal system - the legal
system can recognise agreements under a legal point of view only if they have a
valid social/economic function —> the exchange is the heart of the contract
But you must not limitate the definition to the exchange (closer to the Common Law
system - valid only if there is something in return: reciprocity), it’s related also by
social-economic effects and function (essential to support the society, services..)
It varies depending on the type of contract
ex.
○ Sales —> exchange of good and price, neccesary to support the society
○ Lease contract —> exchange justified by modern needs
○ Company contract —> the law gives an instrument to support the economic
activity
—> each contract is characterised by a “causa” (justification and economic-social
reason)
Art. 1322 Contractual autonomy
—> creation of contracts from concrete experience among two people (kind of
contract not given by law in abstract) —> contract with social origin
Dynamic evolution caused by the society - in 1942 they recognised this
elasticity —> you can’t stop evolution
—> in any case we have to verify the causa —> all contracts must justify themselves
in front of the legal system —> in order to produce legal effects
The causa must comply with - when can I say the causa is really valid? :
1. Mandatory rules
2. Grounds of public policy
3. Public moral
[—> core rules of democratic system] the boundary of this definition is quite elastic
(social evolution)
It is deemed unlawful also when, even if apparently lawful, the contract means in
practice to escape the application of a mandatory rule (ex. Contract that enshrines a
fraud; contract that goes against the Criminal law)
