l Terzo Contract , a new type of business contract (part 3)

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ConJurFollowing the previous column , we agree with Pardolesi when he maintains that the differences found in the various types of contracts do not call for an expansive treatment of the unity of contract law. The varied and rich universe of contractual categories does not aspire to deny the unity of the contractual matrix. It turns out that unity must be found in the very fragmentation of the system, when the third contract of the figures of abuse of dominant position, economic dependence and antitrust legislation approaches.

Obviously the protection of the so-called third contract presents important differences when compared to the two categories mentioned, but there is no reason to distinguish, observes Fabrizio Cafaggi, the protection of consumer freedom and the protection of entrepreneur's freedom [1] , because both essentially take care of the freedom and private autonomy. What must be distinguished is the appropriate means of providing this protection.

The identification of a third contract, in a perspective sensitive to the pluralism of the phenomenology of the asymmetric contract, as Emmanuela Navarreta notes, has the merit of better coordinating the discipline of the contract and the regulation of competition, as well as revealing the general dimension of the system and its unity, which can be conferred by the application of general clauses, especially objective good faith. [two]

The idea of ​​a third contract B2B Lead also requires, as maintained by Nicolò Lipari, to rethink the way in which the jurist works with the categories of private law in the search for a right of equity in the contract, recognized today as a fundamental right capable of bringing to contractual law the unity of paradigm necessary to guide the multiple existing categories. [3] The requirement for this method assumes even more relevance when the effects of inevitable globalization are felt, which has caused, Lipari observes, a gigantic transfer of functions from States to markets and, therefore, in other words, from law to contracts, with an impact ever greater number of acts of private autonomy as a source of law (new lex mercatoria). [4]

Jurisprudence has been sensitive to the need to construct adequate protection, not for this or that category of contract, but for a common pathology of weakness capable of destroying the essence of contract law, which is free will.

Taking advantage of the Italian experience, it is worth remembering in this sense an important decision, noted by Roberto Giovagnoli, in a famous case judged in Italy that involved the ad nutum withdrawal of the distribution contract between the car manufacturer Renault and all its dealers in Italy, deciding the Court of Revocation that the exercise of contractual power must respect objective good faith and the duty of loyalty of behavior, giving relevance to the situation of economic dependence verified between the parties in the judgment of validity of the contractual clause that authorized the automaker's potestative recess. automobiles, as well as recognizing the legitimacy of the judicial examination and valuation of the exercise of this contractual power (Cass. civ. Sez. III, 18-09-2009, n. 20106). [5]



The innovative decision, which changed the understanding of the lower courts of Italian justice, opened the way for a new reflection on contractual phenomenology and the protection of asymmetry of powers, regardless of the quality of the parties. He sought the paradigm of contract law in the general clause of objective good faith and the resulting duties, indicating that it is possible to extract the appropriate response to other contractual categories from the dualist system.