Struttura e funzione dell'obbligazione soggettivamente complessa alla prova degli interessi

Abstract

The structural prerequisites of solidary obligations show that the rationale of the solidarity mechanism would only respond to a need to protect the active party in the relationship. The position of primacy accorded to the creditor’s interest and its satisfaction, through the enlargement of the assets that can be attacked, implies that the credit enforcement cannot be subject to any graduation of the obligations of the joint debtors. Evidence of this is provided by an order of the Court of Cassation, in which the Judges declared inadmissible the appeal lodged by a joint debtor against a bank for having taken enforcement action against the former, even after having obtained – by virtue of the same title – an assignment order pursuant to Article 553 of the Code of Civil Procedure against another joint debtor. Even if the decision appears exemplary according to the structure and logic referable to solidary obligation, however, if one goes on to consider the concretely recurring case, interests of such relevance become apparent to the co-debtors that they no longer justify their mere subordination to that of the creditor, or at least not according to a functional assessment of the conflicting interests, in relation to the duty of solidarity under Article 2 of the Constitution, leading to an acceptable solution according to reasonableness. The investigation, centered on the interests conveyed by solidarity, induces a broader reflection on other civil law institutions, the features of whose discipline gradually see the once predominant structural constraint perish, on the basis of the internal balance of interests within the group of debtors as a founding element of a differentiated treatment of the co-debtors in the external relation, consistent with superordinate values of constitutional source.