Caparra confirmatoria e clausola penale : coesistenza senza cumulo : sull’alternatività rimediale dopo il recesso

Abstract

Starting from Cass., 18 April 2024, No. 10541, this note reconstructs the relationship between the confirmatory deposit (Art. 1385 Italian Civil Code) and the penalty/liquidated-damages clause (Art. 1382), asserting their natural coexistence but functional alternativeness. Where the non-breaching party exercises the deposit-backed rescission under Art. 1385, only the deposit operates (retention or recovery of the duplum), and application of the penalty clause is precluded; the latter, by contrast, governs when the creditor pursues performance or termination for breach with damages, as the agreed measure of loss. The election of remedies is stable and constrained by good faith, so as to prevent “risk-free” escalation strategies. Systemically, the non-cumulation rule promotes proportionality and efficiency of sanctioning clauses, prevents duplicative afflictive effects, and preserves the coherence of the sub-regime under Art. 1385.