Christian Romeo

Private Autonomy and Novation

  • Abstract

Informations and abstract

Keywords: Novation; Obligation; Private Autonomy.

In contracts with a very complex content and which are intended to be effective in a medium-long term, it is often essential for the parties to modify the content in order to suit their needs. The modification may, theoretically, either extinguish the obligation or keep it alive. According to the Italian Civil Code, the extinction of an obligation and its replacement by a new obligation is governed by the so called «novazione». The Civil Code lays down certain requirements («aliquid novi» and «animus novandi») according to which/the «novazione» is acknowledged. This paper aims at analyzing the freedom of the parties with respect to the requirements provided for by the italian civil code. Namely, this article would like to establish whether the parties can «novate» the obligation in spite of lack of a legal requirement (such as «aliquidi novi»), or, by contrast, whether they are able not to novate notwithstanding the legal requirement. The topic of the so called «subjective novation» has been analyzed, as well. Under italian law, the «subjective novation»,[is not expressly acknowledged and it 's thus regulated with reference to the italian «espromissione», «accollo», « delegazione».

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