Formation, Content, Execution,
Breach of Contract
 According
to the principle of freedom of
contract, parties can also make contracts
that are not included in those specifically
regulated by the law (so called atypical
contracts) if such contracts are directed
to the realization of interests worthy of
protection according to the legal order.
Thus scholars use to say that private
autonomy is a source of law.
 The
existence of agreement is
determined objectively on the basis of
the parties’ words and actions.
The objective evidence of agreement is
traditionally the existence of an offer and
of corresponding acceptance (art. 1326).
Offer
An offer is an expression of willingness to
contract without further negotiation.

Offer needs to be comunicated to the other party.
Offer and invitation to treat.
Invitation to treat is not an offer. It’s just a manner
to stimulate interest , to achieve more information
and to go on with negotiation.
Invitation to treat and advertising
Generally speaking advertisement,
brochures ecc. are invitations to treat.
 Acceptance
Acceptance is the answer to a specific
offer, made with the intention to be
bound.
Acceptance needs to be comunicated to
the other party.
Acceptance needs to be conform to the
offer.
 Acceptance
and Counter Offer
An acceptance must be unconditional and
compliant with the exact terms proposed
by the offeror.
When the offeree alters the terms
contained in the offer or adds a new
term, that response is not an acceptance.
It constitutes a counter offer.
 Cases
of termination of offers:
-
Lapse of time. Usually offers have a
determined duration
-
Death of the offerer
-
Revocation. An offer may be expressly
termined by offeror.

It’s for the parties to make their agreement and
ensure that the terms are sufficiently certain to be
enforced.
Courts will generally refuse to fill any gap.
Therefore courts, in practice, fill the gaps if some
evidence is available. In particular courts can take in
to account commercial practice and previous
performance.
As general principle when an essential term is missing
the agreement will be too uncertain to be
enforceable.
 When
the law states that a contract is
enforceable only if recorded in a
particular way, the rule is described as a
requirement of form.
 The
general rule is that there is no
requirement that contracts be made in
writing and parties may decide wheter
written evidence is necessary.
 In commercial dealing written evidence
is almost inevitably available taking into
account the complexity and the value of
obligations.
Contracts need to be complaint with imperatives
norms.
 In some case there could be also a controll of the
substantive content of contract.

Controll of unfair clauses
Exemption clauses(such as clauses which
exclude or limit liability for breach of contract)
are generally considered to be unfair.
 Parties
are bound by the terms of their
contract (art. 1372).
 A contract is legally enforceable if
there’re mechanisms of enforceament of
contractual obligations.
 It is important to identify the standard of
performance required in relation to each
contractual obligation since a failure to
perform to the required standard
constitutes a breach.
 Every
breach of contract will give rise to
a right to claim damages (art. 1218).
A
breach of contract will occur where,
without lawful excuse, a party either fails
or refuses to perform a contractual
obligation-
 The
Italian civil code recognizes the
dissolution of the contract” due to nonperformance (art. 1453), impossibility
(art. 1463)and, finally, excessive
onerousness (art. 1467).
A
contract is discharged by the perfect
performance by both parties.
A
contract could be also discharged by
agreement between parties.