The Fair Contract in the Constitutional System: Principles as an Imperative Content of Codified Rules in the Italian Case-Law

The evolution of the system of sources ruling the institution of contract is a highly sensitive topic amongst Italian scholars. Contract law is no longer a system of rules and structures requiring conformity, but it is encrusted with case law and doctrine. Norms often lack a statutorily-governed situation required by law. Instead of a judgment whether conduct conforms to a given rule, what is required instead is the balancing of different values. A different legal order, based on new values, is coming. Justice in trials and the fairness of contracts are no longer invoked as tools to protect class interests, but as a way to express constitutional values. By the so called ‘fair decision’s’ argument, the principles of trial procedure construct a new set of judicial decisions. Fairness in contract becomes an essential tool through the principle of an effective remedy (Article 24 Italian Constitution, Articles 6 and 13 ECHR, Article 47 CFREU). The new legal order is based on both legal rules and legal principles. The former are a prius instead of a posterius. They guide judges, lawyers and scholars and give them directions on the objective to pursue. This is made possible by a new and rigorous argumentative technique: a different relationship between facts and values, the centrality of the principle of reasonableness, the attention to in the European Courts and the ‘conscious’ use of the techniques of Community law. The relationship between the legislative function and the implementation of rules and principles is changing and, nowadays, they are on an equal footing. This has direct consequence both on the ‘democratic form’ and contract law, which is becoming more and more different from that of the 20th century.