Thesis title: I negozi di secondo grado tra conflitti e sopravvenienze. Transazione, negozio di accertamento e rinegoziazione.
This work is dedicated to the study of second-level legal acts (negozi di secondo grado), namely those acts that intervene, with varying degrees of intensity and with different effects and purposes, upon an agreement already concluded. The investigation moves from a twofold need: a terminological one, recognized in the indiscriminate use of notions such as modification, renewal, repetition, and renegotiation, often used as synonyms despite not being overlapping; and a systematic one, consisting in the necessity to verify whether the figures attributable to this category share sufficient common traits to grant them dogmatic coherence.
In the first part of the work, attention is directed toward the modifying contract and novation, in order to demonstrate that the modifying effect does not exhaust the plurality of effects that second-level acts can produce. The analysis focuses, therefore, on the constitutive elements of the two figures, such as the animus novandi and modificandi, as well as on the entity and the nature of the effects they are capable of producing. With regard to the causa of the modifying act, the possibility of discerning in the multivocality of the causa a common trait of second-level acts is envisioned, insofar as, depending on the angle from which it is viewed, it can assume different characteristics. The analysis continues with the study of phenomena of negotiated iteration, with a distinction between repetition – which leaves the content of the original act unchanged – and renewal, which replaces its source, becoming itself the new exclusive source of the relationship.
Having provided some systematic traits, the angle of view narrows to second-level acts characterized by an external element, conflict – whether economic or legal – and uncertainty: settlement (transazione), the confirmatory act (negozio di accertamento), and renegotiation. Attention focuses, first, on these elements, which constitute the prerequisite of the three figures, as well as on the methods by which conflict and uncertainty are overcome.
Subsequently, the legal nature and effects of each figure are examined. With regard to the settlement, the distinction between modifying settlement and novative settlement is highlighted, as well as the object and its validity requirements, the so-called preclusive effect, and its limits. Regarding the confirmatory act, its admissibility, dispositive nature, object, and preclusive efficacy are discussed. Finally, for what concerns renegotiation, the nature and effects on the contractual equilibrium, the preclusive efficacy, the breach of the obligation to renegotiate, and the remedies are analyzed.
In the course of the present investigation, certain questions arise, both regarding the possibility of considering second-level acts a true category, and, in the event of an affirmative answer, regarding the identification of common traits among the analyzed figures, in consideration of the fact that, due to the intensity of the effects they produce, these cannot always be identified in the persistence of the original title, or in the same causa of the first act.
In the concluding reflections, therefore, the possibility of identifying in the multivocality of the causa a recurring common trait in second-level acts is proposed: the causa of such acts is not unequivocally determinable, as it may coincide with that of the original act or present an autonomous character depending on the intensity of the effects produced. Alongside this, as a further common denominator, is the dispositive nature of such agreements, from which preclusive efficacy follows as a necessary consequence, although modulated differently in the individual figures.
The results achieved demonstrate that the category of second-level legal acts has its own raison d'être, insofar as its common traits are exalted without flattening its specificities; given the heterogeneity of the figures that compose it, terminological rigor and the correct classification of the nature of their effects are imposed as necessary prerequisites, on the application level, to keep their distinctive characters firm.