La causa nei contratti derivati

In recent years there have been intense and fast changes in the economy and on the markets. In this context an economic model strongly marked by liberalism which has been the beginning of the phenomenon known as globalization has been implemented. A market free from state intervention (including rules) encourages the access of some people such as individuals and unskilled operators in general in particularly insidious market sectors. At the same time the contracts practice has been enriched by different and diverse models of contracts that have raised and continues to raise several legal problems. Among these figures are “derivatives” which are financial instruments whose circulation is still «one of the main factors of amplification of the crisis» of a market which is already deregulated and globalized. A crisis which in turn is the effect of various systemic risks that the various institutions (political and economic) are struggling to govern. This thesis is structured in three chapters. In the first chapter social and economics problems posed by derivatives are discussed. The most relevant sources of law are listed and the different approaches adopted by the doctrine has been examinated to try to define a model which introduces a novelty in the law of contracts. The second chapter speaks about the presence of a “multi-level” regulation which is still being formed and in which the «customer interest» and the «integrity of markets» are not opportunely reconciled. Inevitably this has an impact on the individual dealing with derivatives (especially derivatives “over the counter” trading) with respect to which the particular situation of conflict between the interests of the intermediary and the customer assumes very often pathological character. In the third chapter the strictly civil issues that are raised by derivative contracts have been elaborated. These are issues that come into tension with the whole system of contract law and still are not definitively overcome. For this reason it was decided to set the examination of various issues in a systematic and historical perspective. In particular the main themes that have been discussed in this chapter are: the notion of «alea» and the category of «aleatory contracts», the consideration («causa») of contracts in general, and of the derivative contracts in particular and lastly the object («oggetto») of derivative contracts.