Autonomia privata e responsabilità patrimoniale del debitore: nuove prospettive

Traditionally, civil law legal systems have built debtors-creditors relations around the universal patrimonial liability principle: all of a person's property (his or her entire patrimony) is available for seizure and sale to satisfy the claims of judgment creditors. Next to this principle, Article 2740, paragraph 2, of the Italian Civil Code, rules that limitations of debtor’s patrimonial liability are not allowed except in specific cases permitted by law. Historically, this second principle concurred to reinforce the dogma according to which debtor’s patrimony represents creditors’ common pledge, which must be considered indivisible and intangible by contract freedom. The purpose of this study is, in the first place, to draw a clear distinction among those limitations of debtor’s patrimonial liability that are «good against the world» and those that are binding only creditors that consented to the limitation itself. Once showed the sharp difference between these two kinds of debtor’s patrimonial liability limitations, this study is aimed at demonstrating that, in the Italian legal system, there is not a real rationale behind the standard doctrinal opinion, that considers void those limitations created through contract freedom and that are binding only consensual creditors. Ultimately, this study offers a new interpretation of Article 2740, paragraph 2, of the Italian Civil Code, that, on one side, narrows its scope to only those limitations of debtor’s patrimonial liability that are «good against the world» and, on the other side, opens the legal system to the possibility, for debtors and creditors, of agreeing on a non-recourse clause.