Art. 1325 CC - Requisites
“The requisites for a contract are:
1.) agreement between parties (accordo) ;
2.) causa ;
3.) subject matter (oggetto) ;
4.) form (forma) , when prescribed by law, under penalty of nullity.”
Art. 1108 Code civil
Four requisites are essential for the va- lidity of an agreement:
- The consent of the party who binds himself;
- His capacity to contract;
- A definite object which forms the subject matter
of the undertaking;
- A lawful cause in the obligation.
Art. 1346 CC - Requirements
“The subject matter of the contract must be licit, possible, determined or determinable.”
Physical and legal possibility : - in technological terms, it is not physically possible
to transport a supertanker ship by air.
- it is not legally possible to sell dead bodies.
Example : In the case of a sale, if the price is not agreed by the parties, it must be determinable
(market price, share quotation etc.). Otherwise the contract is void .
The determination of the subject matter of the contract, upon agreement of the
parties, can be referred to a third person (the arbitrator : Art. 1349 CC).
In order to create a binding contract, the parties must express their agreement in a form ( = way) which is sufficiently certain for the courts to enforce.
Refusal of the courts to make
a contract for the parties

Desire of the courts to put into effect what they believe to be the intention of the parties


socio-economic function of the contract
The idea underpinning the notion of causa is that every transfer of wealth by one party to another requires a “justification” . In other words, the transfer must be directed towards interests deserving of protection according to law (see Art. 1322 CC).
According to Common law , a gift is not a contract since there’s no consideration .
According to the Italian legal system , a gift is a contract.
The causa (socio-economic function of the contract) is conferred by the intention only to enrich the recipient (spirito di liberalità) .
Example 1: If a small business grants, with no consideration, a patent which it holds,
to a large company to which it is a supplier, the contract is void because
there is no causa .
Indeed:

The contract is not a sale, since no price is paid;

The contract is not an exchange; there is no consideration (different from the price);

The contract is not a gift, because there is not the intention only to enrich the recip.
Example 2: Bill promises to pay his debtor Paul the next day. Promise of payment
= Bill acknowledges that he is indebted to Paul = Acknowledgement of debt (IOU)
If Bill promises to pay € 1000 reward to whoever finds his dog, an obligation arises (a public promise).
Promise to the public


Will Bill be required to pay Paul following his promise of payment/recognition of
debt?
Does the promise of payment/acknowledgem. of debt generate an obligation?
Either Bill was already Paul’s debtor before the promise/acknowledgement …
…
in this case the obligation already existed, and thus does not arise from the promise/acknowledgement or Bill was not Paul’s debtor before the promise/acknowledgement …
… in this case the promise/acknowledgement
does not give rise to an obligation; indeed
…
… every transfer of wealth requires a causa .
!
In summary: the notion of causa and consideration do not coincide. They are, however,
both expression … mistrust of Legal systems of “unilateral” ( = with no in- herent payment) transfers of wealth. Clearly, in the case of the
Italian Legal system, that holds for situations not expressly provided for by law.
It confirms mistrust of the
Italian Legal system of gratuitous contracts !
In contracts provided for by law with no counterperformance mistrust of the Italian Legal system of unilateral transfers of wealth is confirmed by additional elements restricting the “area of enforceability” :(gift, gratuitous loan, guarantee etc.).
Real contracts Explicit consent

But if no obligation arises, is a person free to promise anything he/she wants to
a third person with no fear of legal consequences?
Inversion of the burden of proof (

Art. 2697 CC).

1.)
Simple written form ( scrittura privata )  it has to be signed;
2.)
Written document with authenticated signatures (scrittura privata autenticata)
Signatures must be authenticated by an authorised person (generally, in contract law,
a notary [ notaio ] ).
If someone claims that the signature is false , that person must initiate a criminal suit;

risk of criminal sanctions.
3.)
Written document whose content is “authenticated” (public act - atto pubblico )
The authorised person (notary) ascertains that the content of the document corresponds with
the will - as shown to him - by the declarants
 eg, in the case of the gift of real estate
If someone claims that what the notary ascertained was declared to him is false , that person must initiate a criminal suit;

risk of criminal sanctions.

Very strong proof It covers: the signing in case of
2.) 
the whole content in case of
3.)
Requirements of form are not a significant feature in English contract law.
Formal requirements which are necessary in order to render a contract binding: a.) - a contract must be evidenced in writing ; b.) - a contract must be made in writing ; c.) - a contract must be made by deed ;
A document bearing the word deed or some other indication that it is intended to take effect as a deed must be signed by the individual maker of the deed .

a.) - a contract must be evidenced in writing ;
Contracts of guarantee must be evidenced in writing
Fideiussione b.)
Section 4 of the Statute of Frauds 1677
“Noe action shall be brought …
whereby to charge te defendant upon any speciall promise to answere for the debt default or miscarriages of another person … unless the agreement upon which such action shall be brought or some memorandum or note thereof shalle be in writeing and signed by the partie to be charged therewith or some other person therunto by him lawfully authorized.”
- a contract must be made in writing ;

- property interests (

ownership, usufruct)
c.)
Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989
“A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.”
- a contract must be made by deed ;
There are (only) four interests in land .
Section 52(1) of the Law of Property Act 1925
“All conveyances of land or any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed .”
A lease for more than 3 years must be by deed .
There are (only) two estates :
- freehold ; - leasehold .
Example: A house is let on a 99-year lease.

- ownership; - usufruct .

Form requirements have three functions :
- Evidentiary function ;
- Cautionary function (“it acts as a check against inconsiderate action”);
- Chanelling function (formalities provide a simple and external test of enforceability).

What is the difference between a written contract and a contract evidenced in writing ?
When a given Legal system prescribes the written form on pain of nullity , the question arises as to what has to be stated in written form.
1. Art. 1351 CC lays down the rule that every contract which transfers ownership or property interests in immovables must be in writing .

Does the signing of the cheque book meet the
form requirement laid down by Art. 1351 CC ?
2.
Bill , the prospective seller of a right of usufruct in an immovable, and
John , the prospective usufructuary, reach an oral agreement.
4.
€ 1.000
Bill
Before handing over the cheque,
John asks Bill to sign the cheque book as a “receipt”.
3.
In order to confirm his “willingness” to pay for the right of usufruct ,
John makes an advance pay- ment of € 1.000 to Bill by cheque.
N.B:
In order to meet the written form requirement, the reciprocal will to en- ter into the relevant contract has to be fixed in written form (including all essential elements of the contract parties intended to enter into).