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Home|Italian Law Quickguides: The Contract’s Form

Italian Law Quickguides: The Contract’s Form

 

The principle of freedom of forms

The form with regard to contracts relates to the way in which parties can express their consensus. With regard to the Italian law of contracts the principle of freedom of forms applies. Indeed, when the Italian Civil code specifies the essential elements of the contract (article 1325), it states that a form is necessary only if required by law. This means that the way in which parties can express their agreement can take any form (written or verbal). The code specifies when a contract needs to be in written form (e.g. contracts related to immovable propriety – article  1350)

It derives that parties can choose the form they wish to express their agreement, and any limitation is to be viewed as an exception which needs to be expressly provided for by law.

 

Verbal contracts

Even though verbal contracts are legally binding under Italian law, there is an evident difficulty for the parties to prove its content. For this reason, it is highly recommendable not to choose this as a form.

Additionally, with regard to certain contracts, although a specific form is not required for it to be valid and enforceable, the law requires it to be in writing for a party to demonstrate its content (e.g. agency contract).

 

Written contracts

The law might require contracts to be in a written form not only to prove the content of the agreement, but also for it to be valid.

With regard to these “formal contracts” as they are known in practice, the law may require additional requirements. As an example, to transfer the ownership over an immovable propriety, the contract needs to be an official document, which usually takes the form of a notary deed. Thanks to the formalities leading to its creation, the validity of this type of contract can be question only by following specific proceedings.

Alternatively, the contract can take the form of a privately written document which is certified by a public official (usually a notary). In this case the public official, after ascertaining the identity of the parties, certifies that the document was signed in his presence. This gives to the contract a specific strength when it comes to judicial proceedings. In this case, a party cannot refute his or her signature, as opposed to a contract that is signed privately by the parties.

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2020-10-24T15:53:58+00:00
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