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The contemplatio domini in contracts concluded by administrators.

[:it]It is an established principle in case law and doctrine that '.... even in the case of social representation, contemplatio domini is required, so that if the representative of a company does not use its name, the shop by the same concluded has no effect on the company itself
."[1]

Doctrine and jurisprudence agree that the statutory provision governed by Art. 1388 of the Civil Code (".contract concluded by the representative"), is also applicable by analogy with reference to organic representation, which can be configured precisely in relation to persons having the status of representative bodies of legal persons.[2]

Requirements for the contract entered into by the principal to be effective there are essentially three:

1) the contribution of representative power;
(2) the representative's action within the limits of the proxy;
(3) the circumstance that the third party is made aware by the agent himself of the fact that the contractual arrangement is referable to the principal (contemplatio domini);

It is therefore necessary that all three elements exist at the time of conclusion of the contract for the transaction to be effective vis-à-vis the principal, and if even one of these prerequisites is lacking, the transaction will be effective only vis-à-vis the principal.

Focusing on the fundamental requirement of contemplatio dominiit is necessary to emphasise that such an element performs the dual function of externalising the representative management relationship existing between the agent and the principal and of consequently making possible the imputation of the effects of the contract concluded in its name by the former.

According to authoritative case law, the spending of the principal's name in contracts subject to written form ad substantiam must be in express mode cannot be deduced solely from presumptive elements.

In such contracts, the principle that all essential elements of the contract must be apparent from the contract requires that the spending of the principal's name also result ad substantiam from the same document in which the contract is contained.[3]

ABSTRACT

  • contemplatio domini is also required in the case of social representation
  • in order for the contract entered into by the principal to be effective, the grant of representative authority is required, the representative's acting within the limits of the power of attorney, the contemplatio domini
  • in contracts subject to written form ad substantiam the contemplatio must be expressly stated, as it cannot be deduced solely from presumed elements

[1] Civil Cassation, Sec. II, 30/03/2000, No 3903See also Civil cassation, sec. lav., 25/10/1985, no. 5271 ".If the representative of a de facto partnership does not use the name of the other partner or partners, the transaction concluded is effective only in respect of that representative, even if it relates to common interests or property;

[2] In this sense, DE NOVA, The contract, vol. X of the Treaty of Private Law, directed by P. Rescigno, Utet, Turin, 2002, p. 10;SANTORO-PASSARELLI, General Doctrines of Civil Law, Jovene, 1986 p. 288; in case law for all Cass., 18 June 1987, no. 5371, in Giur. it., 1989, I, 1, 1056

[3] "In contracts concluded by the agent, [...] where there has been no express mention of the agent's name, in which case the effects of the transaction are directly imputed to the agent even if the other contracting party has had knowledge of the agent's authority or interest in the conclusion of the transaction [...], any tacit contemplatio domini cannot be inferred from presumptions". (Civil cassation, sec. II, 12/01/2007, no. 433)

 

 

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by admin