Abuse of Rights and Freedom of Contract in Comparative Perspective: A Legal and Economic Analysis

Authors: Marco Farina, Demetrio Maltese

ABSTRACT

After a succinct preamble about the developments of the abuse of right doctrine in historical and comparative perspective, the authors describe the main sources of Italian law in this field. Great emphasis is placed on the analysis of decision n. 20106/2009 of the Italian Supreme Court, dealing with a termination clause in a distributorship agreement.

Highlighting the relevance and impact of judicial review on the merits of a contractual relationship, also in light of the principle of certainty of law, the authors provide a comparative outlook of the solutions envisaged in other legal systems, namely in the U.K., the U.S. and France.

The abuse of right doctrine is furthermore investigated under a broader perspective, studying the always-controversial linkage between contract, market and institutions. Finally, the authors tackle the issue of contract incompleteness, especially with regard to agreements of duration, lingering upon the integrative role which judges are called on to play in the light of the system’s general principles and the duty of good faith and fair dealing.

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