Il negozio di accertamento, limite all'autonomia privata

This thesis aims to verify the eligibility and limits of the figure of the conventional assessment, which finds widespread use in judicial practice, but unlike the German B.G.B., it is not explicitly covered in the Italian Civil Code. In the first part I have tried to identify the boundaries between the legal transaction of assessment and the typical assumptions governed by the legislature that in this case might have a confirmatory function. The research was then directed to verify whether it is permissible an atypical legal transaction of assessment or if the private autonomy has some limits. The legal transaction of assessment is, in fact, oriented towards the past, the parties by agreement or unilaterally turn back to a fact or a previous legal situation subjectively uncertain, in order to clarify the meaning. The first limit that the parties meet is a temporal limit. It cannot be changed a fact as it has happened in reality: the parties assess a fact, but this fact must correspond to reality, otherwise the fact is not assessed, but it is changed. If, however, the parties turn back to a previous contract now concluded, there is assessment in the hypothesis of authentic interpretation: the parties clarify , verify the previous legal relationship and, in this hypothesis, unlike the previous one did, they don’t meet the limit of truth, because they experience a legal situation and not a fact. The most important implications of the legal transaction of assessment is found in the process when one party, failing commitment, sue the other party: the defendant may assert the legal transaction of assessment and be exempt from the burden of proving the fact or the underlying relationship and it will be up to the other party the burden of proving the contrary. In the Italian legal order, the basis of this operation can be inferred from the combined provisions of Articles 1321, 1322 , 2648 of the Italian Civil Code. In fact, by the article 1321 we know that the contract can not only be, but also regulate, the capital legal relationship. To the broad meaning of the regulation it can be linked, therefore, also the effect to assess a pre-existing situation. While the admissibility of an atypical figure comes from the article 1322, it is crucial to determine whether the cause is worthy of protection, worthiness that can be found in the need for certainty. The parties when assessing a fact or a pre-existing situation look to the past, they assume that the fact or the relationship is just as they assessed. The logical reasoning underlying it is that of abductive inference. In other words , from the effects , meaning from the fact assessed, it goes back to the cause, that is the pre-existing fact. The legal transaction of assessment, operates as a conventional presumption and its foundation is found in the article 2698 of the Civil Code, that allows the parties to invert conventionally the burden of proof even with the limitations of the rights available. The parties, therefore, are not precluded from sue, but the party that don’t respect the agreement shall bear the reversal of the burden of proof even if restricted to the assessed fact.