Le caparre tra storia e sistema : alternatività dei rimedi e controllo della misura

Abstract

The article reconstructs the genealogy and the systematic placement of caparra – from the Greek-Roman ἀρραβών/arrha to the 1942 codification – treating caparra and penalty clause as distinct species within the broader genus of privately negotiated sanctions and focusing on the confirmatoria/penitenziale dyad. It argues that caparra is an accidental (not accessory) element of the contractual scheme, combining bond-strengthening and a recessive self-help function; it clarifies the strict alternation between the caparra-assisted termination (retention/double) and ordinary remedies (specific performance or termination with damages), with consequent non-cumulability and a ban on «migrating» between actions. The paper refines limits on revoking the chosen remedy under good faith and reliance and revisits structure and object (fungibility; the feasibility of promissory/deferred caparra). On the «measure» of the sanction, it adopts proportionality and favors analogical reduction under Art. 1384 of the Civil Code in cases of manifest excess, instead of selective invalidity under Art. 1418, also engaging with consumer-law controls. The upshot is a historically grounded, non-syncretic account that keeps caparra conceptually distinct from the penalty clause while confirming it as a contemporary technique of contractual justice within the law of remedies.