La c.d. compensazione impropria ovvero la compensazione c.d. impropria.

Abstract

The dissertation builds on a series of judgments according to which, under articles 1241 ff. of the Italian Civil Code, set-off can only be effected in respect of obligations arising out of distinct legal relationships or in respect of obligations which are not reciprocal (synallagmatic) in nature. When these situations arise, e.g. when the obligations in question relate to one and the same contract, or when, in a bilateral contract, the promise of one party is given in consideration of the promise of the other, only a so-called “compensazione impropria” (apparent set-off) occurs: the latter is a mere ascertainment of the underlying respective obligations, thereby falling outside of the scope of articles 1241 ff. of the Civil Code. By analysing the judgments concerning issues of “compensazione impropria”, the survey provides an account of the practical and legal implications of this institution. A comparative study is carried out for this purpose with the French and German legal systems, namely as regards the compensation des dettes connexes and Anrechnung. The aim of the comparison is to determine how the three legal systems deal with the same practical needs and to what extent the solutions adopted in each of these countries bear similar or common features. In the final part of the thesis, the problem is considered of whether a sound dogmatic and systemic justification exists, under the Italian legal system, for the so-called “compensazione impropria”.