La conclusione del contratto: alcune riflessioni.

The complexity of economic relations highlights both the inadequacy of the traditional contract formation and the need to rethink preliminary negotiations. The drafting of a final text is only the last step of a complex procedure in which it is sometimes difficult to distinguish between contract formation and enforcement. In this sense, negotiations may strongly limit the parties’ renegotiation freedom. In practice, as evidenced by case-law, current interpretative tools may prove inadequate to assess the agreement. Therefore, ascertaining the parties’ common will is crucial. For this purpose, courts need to consider not only the contract, but also extra-textual data and, above all, negotiations. Agreements that are the result of a complex formation process require a careful analysis aimed at assessing, case by case, the existence of proposal and acceptance. These can be either explicit, or implicit, when they are instead expressed through semantic signs or simply behaviours, as in the case of the so-called contracts without agreement. This perspective is even more convincing in the new social and economic context characterized by overwhelming and frenetic technological evolution that give rise to flexible contractual practices not corresponding to typical schemes. Thus, the rules on contract formation, rather than being adopted as the solution, must instead be functionalized to the overall protection of the contracting parties’ interests in those negotiations characterized by unequal bargaining power.