2026-09-24T21:49:40Zhttps://iris.unica.it/oai/requestoai:iris.unica.it:11584/2664902022-10-20T09:18:57Zcom_11584_207615com_11584_111066col_11584_265854
L'autonomia privata nella fase esecutiva del contratto: la datio in solutum
RIVIECCIO, DANIELE
adempimento
autonomia privata
different performance
esecuzione
prestazione diversa
private autonomy
procedimento
process execution
Settore IUS/01 - Diritto Privato
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.
2014-05-16
info:eu-repo/semantics/doctoralThesis
http://hdl.handle.net/11584/266490
ita
numberofpages:174
info:eu-repo/semantics/openAccess
Università degli Studi di Cagliari
license:Non specificato