The classic problem of the iniquity of the deposit is traditionally solved in the negative by the courts, which do not consider applicable, the reduction pro- vided for the penalty clause; and so on the basis of the withheld exceptionality of this remedy and the alleged functional distance of the models being compared. The solution offered by the Court of law, represented by the use of good faith as a rule of validity, hides the terms of the problem, the solution of which has to be investigated the relationship between good faith and fairness, and the func- tional profile of the deposit. The first reflection reveals the overvaluation of good faith and its characteristic of instrumentality to the rules of proportionality. The second study reveals the function penal for model art. 1385, and the function compensatory for the deposit art. 1386.
La correzione della caparra iniqua tra buona fede e proporzionalità
RUSSO, DOMENICO
2015-01-01
Abstract
The classic problem of the iniquity of the deposit is traditionally solved in the negative by the courts, which do not consider applicable, the reduction pro- vided for the penalty clause; and so on the basis of the withheld exceptionality of this remedy and the alleged functional distance of the models being compared. The solution offered by the Court of law, represented by the use of good faith as a rule of validity, hides the terms of the problem, the solution of which has to be investigated the relationship between good faith and fairness, and the func- tional profile of the deposit. The first reflection reveals the overvaluation of good faith and its characteristic of instrumentality to the rules of proportionality. The second study reveals the function penal for model art. 1385, and the function compensatory for the deposit art. 1386.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
