The principle of freedom of forms
With regard to contracts, the form relates to the way in which parties can express their consensus. Italian law of contracts recognises the principle of freedom of forms. Indeed, when the Italian Civil Code enumerates 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 unless the law explicitly specifies when a contract needs to be in written form (e.g., the Italian Tenancy law requires that residential tenancy agreements should take the written form otherwise they are to be considered null and void).
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.
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 enter into verbal contracts.
Additionally, with regard to certain contracts, although a specific form is not required for it to be valid and enforceable, the law demands that it takes the written form for a party to demonstrate its content. Agency agreements and settlement agreements are a perfect examples of this rule.
The law might require contracts to be in a written form as a precondition for them to be considered as valid and enforceable agreements.
Additionally, for certain agreements which are generally referred to “formal contracts” the law mandates additional requirements. For example, to transfer the ownership over an immovable propriety, the contract needs to take the form of a public deed (the same applies to power of attorneys issued to Italian lawyers if the client is located outside the Italian territory). Thanks to the formalities leading to its creation, the validity of this type of contract can be questioned only by filing a plea of forgery.
Alternatively, the contract can take the form of a privately written document which is later 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. Indeed, a party cannot refute his or her signature, as opposed to a contract that is privately entered into by the parties.
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