L'autonomia privata nella fase esecutiva del contratto: la datio in solutum

And ' well-known, to use the expression employed by an authoritative doctrine that "the private acts much more than regulate" and face it, what's more, without worry of classification dogmatic for their actions. Starting from this basic premise, imbued with significant implications on the dogmatic, this description is intended to offer some thoughts on the role of private autonomy in the execution phase of the contract. In this light polarizing means, in particular, on the concept of private autonomy procedural that interacts with the well-known phenomenon so-called "Liberalizing effect" in our legal system. Following this line, you will use a different methodological approach to clarify some controversial issues relating to the nature and the character of the place of performance in compliance with art. 1197 c.c. In particular, moving from a flexible and relativistic dogmatic reconstruction of the notion of enforcement activity in private law and the relationship between the conceptual categories of effect, efficacy (when the second one adopts a different concept and a different content than the first), and execution, will face, including a survey of the major doctrinal and jurisprudential addresses three problem areas that interact with each other. The first is structural in nature, relates to the note interpretative controversy about the nature of the contract or consensual real performance instead of performance. The second of functional matrix, is inherent in the nature of act capable to satisfy the creditor's interest or not the execution of the service. Finally, it is considered, on the floor effectual qualifications in key extinctive, or, alternatively, the amending of the case. To these questions we intend to answer here using the landing construction reached by the modern doctrine in the analysis of the processes of bargaining, moving, in particular, from the conceptual category of the so-called configurative effect. Will face, and then, at a later time, the reflections practical application of the landing constructive achieved. The historical evolution of the institution actually showed a progressively increasing vitality in practical operation. So much is clear not only from the recognition of certain offenses traditionally recurring repertoires in case law, such as, for example, in the datio sulutum of bank checks and drafts, the bankruptcy petition in the place of performance of the service as a means of payment abnormal, agreements on crisis marital called translational in fulfillment of the obligation to maintain in a single solution, and, finally, the so-called datio in solutum testamentary on which, for the sake of brevity, we do not linger here. It should be pointed out that in fact the issues underlying the institution denote also considerable importance in the understanding of a situation recently introduced by the regional planning legislation in the wake of the information provided by the Community case-law formed the subject of expropriation. It is, more precisely, of the so-called sale agreement in solutum of real estate and development rights to the owner of land expropriated in a pecuniary compensation, on which we will focus extensively in the last part of this work.