Il preliminare di preliminare tra causa concreta, meritevolezza e governo del tempo contrattuale

Abstract

The essay reframes the so-called “preliminary of a preliminary agreement” as a contract whose cause lies in the rational deferral of commitment: it stabilizes a narrow core of essential terms while scheduling a later, full consolidation of the bargain. The paper articulates a two-step test (first, whether the initial writing already qualifies as a full preliminary enforceable under art. 2932 c.c.; only failing that, the worthiness of a staged formation) and, focusing on real-estate practice, explains that the “second preliminary” typically serves merely formal or opposability purposes (e.g., art. 2645-bis c.c.), without duplicating the obligatory phase. A consistent remedial regime follows: no specific performance for the interlocutory stage, but endoprocedural contractual liability measured by the negative interest (with loss of chance subject to strict proof); the broker’s fee is generally excluded where only a pre-preliminary agreement exists. Ultimately, phased contracting attains practical normativity, and time becomes a structural component of contractual cause and remedial design.