Il «mutuo solutorio» tra effettività della consegna e così detto effetto novativo (note sulla funzione della consegna nelle norme sul mutuo)

A loan to allow a payment (the so-called “mutuo solutorio”) is a loan agreement used to pay-off a previous debt vìs-a-vìs the lender that the borrower was unable or unwilling to settle by other resources or methods on the agreed maturity date. The Corte di Cassazione is called upon to judge whether such a loan is to be considered perfected and thus valid as a source of repayment obligations even in cases where the delivery of the agreed amount by the lender took place by means of an accounting entry to pay-off the pre-existing debt, while the borrower could not dispose of the money by bank transfer or other ways. The author of the paper, taking into consideration the role of the delivery in the loan contract regulation and examining the main arguments used in case law and by doctrinal writings on the subject, holds that the contract should be considered validly concluded.