Thesis title: Sulla retroattività della condizione
The conditional clause, through which the parties subordinate the effectiveness or ineffectiveness of the agreement to a future and uncertain event, is an absolutely ductile instrument at the service of private autonomy.
Although it has remained unchanged in its legislative structure from 1942 to the present day, it has undergone a profound rethinking thanks to the work of the best doctrine that has gradually disavowed the dogmas lacking unambiguous normative evidence that surrounded the institution, caging its explanatory potential: It is well known that, at present, the condition is recognised as having the capacity to act as an alternative to the ordinary resolutory remedy, in its declination as a resolutory condition of non-performance: its usefulness can be estimated precisely in the light of the mechanism of absolute retroactivity (deriving from the combined reading of arts. 1357 and 1360 of the Civil Code), which makes it possible to recover the asset in a specific form also from third parties.
An attempt has been made in the discussion to highlight these profiles, attempting to demonstrate, on the basis of a wholly positivistic approach, that in the reconstruction of the essential features of an institute it is always necessary to start from the normative datum. To the extent of our interest, it is unequivocal in establishing the retroactivity of the fulfilment of the condition.
An authoritative doctrine, now rather old, has denied that in our legal system the rule of retroactivity of the condition is in force, disregarding the literal datum of the law, clear on this point: it would be a sterile petition of principle, a dogma devoid of real construct and practical significance. This assertion, which will be subjected to critical analysis in the course of the paper, fatally clashes with the legal datum, unexceptionable on this point; nor can it be said that the exceptions that the law makes to the operativity of the retrospective precept are such as to obliterate the value of the rule.
The paper is structured in three chapters: in the first we will try to retrace the main evolutionary coordinates of the condition. It will be noted, in particular, that most of the predicates that the traditional doctrine attributed to the condition have been progressively superseded, because they lack a positive basis, unlike its retroactive nature; in the second chapter we will examine the meaning to be attributed to the retroactivity of the condition and analyse the derogations, the scope of which we will attempt to resize; in the third, and last, we will focus on the relations between conditional retroactivity and third parties, also through the analysis of absolutely peculiar figures.