No contractual value for the written details of the essential points on which a contract is based in the course of pre-contractual negotiations

The Court of Cassation, called to rule on the claim for compensation for damages suffered as a result of the failure to stipulate a preliminary sale of a property, returns to clarify certain issues regarding the conduct that the parties must maintain during dealings prior to the conclusion of the contract.

In particular, the Supreme Court of Cassation – after having established that, by virtue of the iura novit curia principle pursuant article 113 of the code of civil procedure, it is the task of the Judge to classify the application in law, provided that the facts on which the application is based remain the facts annexed thereto – has ruled that, in order to assess behaviour contrary to good faith and unjustified withdrawal from negotiations, a distinction must be made between the contractual bond created by the stipulation of a preliminary preliminary and the simple “written points“.

And in fact, the preliminary of preliminary, as recognized by the Supreme Corte of Cassation in 2015, is a valid and effective agreement to oblige the parties to conclude a subsequent contract when there is an interest of the parties to a progressive formation of the contract. In such cases, the breach of such agreement, as contrary to good faith, is capable of establishing a contractual liability for breach of a specific obligation arising in the pre-contractual phase.

When, on the other hand, as in the present case, a simple declaration of intent is present, only the behavior of the parties is relevant and not the “written points” which, on the contrary, have no contractual value but are useful only for the purpose of assessing the conduct of the parties with respect to the program indicated in the same.

Desiree Pasquariello