Clausola di caparra penitenziale

Proto M

2017-01-01

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Abstract

When the parties to a contract agree that one or both of them shall have a with-drawal right, the penitential deposit permits a prior determination of the compensation for the party who has not terminated the contract; that’s why the judge must limit it-self to take note of such a predetermination, without any further investigation about the attributability of the agreement's termination being required. Except for contracts to be performed permanently or recurrently - in respect of which the right of withdrawal may be exercised at any time but shall not be effective with regard to any service which has been already carried out or is in the process of being carried out - and except as may be otherwise agreed between the parties, the right of withdrawal may be exercised prior of the beginning of the performance of the contract, that is the moment from which the legislator presumes the intention of the parties to be legally bound. The loss of the right of withdrawal - for example, after the deadline set for exercis-ing such right or when a party performs the contract - gives rise to the obligation of the receiving party to return the received deposit; and, if the tradens is still legally bound to the accipiens and conditions are met for the application of Art. 1243 of the Italian Civil Code, the two obligations are discharged for an equivalent quantity by applying the rules on offsetting of claims. With reference to the deposit, it is also denied both the direct application and the application by analogy of art. 1384 of the Italian Civil Code regarding the reduction of disproportionately penalty clause. As a consequence, the party who has provided for a disproportionately high deposit by way of fee for the withdrawal, is only entitled to invoke the remedy of the invalidity of the clause for lack of consideration.