Vincolo negoziale ed effetti finali nel contratto preliminare ‘ad effetti anticipati’

In the preliminary contract of sale characterized by the early release in the availability of the property, the delivery may take place in execution of a further contract, autonomous and connected to the preliminary one, aimed at regulating the enjoyment of the property until the stipulation of the final contract. In the absence of hermeneutical indications that point in this direction, however, the interpreter, in investigating the contractual text, must start from the assumption that the transfer effect is already achieved. In the second case, in the presence of defects of the good, the buyer has at his disposal the ordinary remedies provided by Articles 1492 and 1494 of the Civil Code, therefore he can ask for the termination of the contract or the reduction of the price, together with compensation for damages in the presence of a negligent conduct of the seller. In the first case, the defects of the good promised for sale and granted in enjoyment entitle the promising buyer to act in order to obtain, alternatively, the termination of the preliminary contract and the one connected to it, or the exact fulfilment of the obligation to allow the enjoyment of a good free from defects, through their elimination at the expense of the promising seller. This last action, however, cannot be carried out at the same time as the one provided for by Article 2932 of the Civil Code: the constitutive judgement, determining the transfer of the property, extinguishes the relationship that had its source in the enjoyment contract and does not allow to solicit the fulfilment of an obligation no longer up to date. If (exact) fulfilment cannot be demanded, together with the specific execution of the obligation to contract, however, a claim for damages can be made. The final contract of judicial creation – which does not even justify the request for price reduction, precluded by Article 1491 of the Civil Code, since the defects are known to the buyer – allows to determine, for the seller and according to Article 1494 of the Civil Code, a debt of a compensatory nature: to be satisfied by equivalent, in which case it is compensable with the one relating to the price due by the buyer; or in a specific form, with the sentence to eliminate the defects. Thus pursuing, by means of the instrument of compensation, the same result (reduction of the price, elimination of defects at the expense of the seller) reached by the most recent case law.