Profili evolutivi della tutela contrattuale

Abstract

The contract of European Law reveals the priority of “specific” protection in the double sense of: the prevalence of the protection in “specific” form on the protection by equivalent; the absorption of the nullity, traditionally a form of “restitutory” protection, in the category of “satisfactory” protection, which is a “specific” form of protection. These unprecedented forms of post-contractual protection are inci- sive (the deletion of the unfair clause, the correction of the professio- nal’s performance), but are strategically insignificant and they play a marginal role under two profiles: 1) within the forms of protection granted by the European Law to the consumer, individual protections are substantially overshadowed and supplanted by forms of “collec- tive” protection, which can be exercised in a preventive, judicial or administrative form; 2) within the broader context of the legislative intervention techniques, even non-remedial techniques, the private regulatory law privileges pre-contractual instruments, such as “ade- quate” information and bargaining duties. The serial and standardi- zed dimension, where the market players operate, marginalizes the negotiation and, thus, the incisive remedial tools that operate within it. In other words, while the rules, which provide the domestic con- tract with remedies, pursue solely an “internal” contractual strategy, the rules, which provide the contract of European Law with remedies, aim to safeguard the competitive market. Therefore, the latter reme- dies pursue an “external” contractual strategy.