Abstract

This paper deals with the partial avoidance of contract and the limits to the following adjustment of its content. According to Art. 1419 of the Italian civil code, a contract can be partially void, but nothing has been expressly stated regarding the partial voidability. Nonetheless, the partial voidability is usually acknowledged by the courts, provided that the remaining part of the contract would not be further adapted or modified with respect to the price or other terms. As a consequence of this rule, when the grounds of avoidance affect the performance only in part, the party affected should have no right to a corresponding reduction of the price. This paper maintains that in some cases it could be unnecessarily harsh to deny the possibility of adapting the remaining contract after its partial annulment and it would rather be preferable to examine and take into account the different ways of adapting a contract provided for by the Italian law system, such as the judicial power of filling gaps, renegotiation, and the corresponding reduction of the price. For the same reasons, the partial avoidance of the contractual terms should be maintained separate from the partial avoidance of the object of performance: the former involves the juridical balance of the contract and requires a more in-depth analysis of the content, whereas the latter is related to the economic balance of performance and counterperformance left to the contractual autonomy of the parties and requires only a corresponding reduction of the price. Consequently, in case of partial avoidance limited to the object of performance, the contract is subject to the rule set out by Art. 1464 of the Italian civil code, governing the supervening partial impossibility, which can be considered as the general rule when a performance has been partly reduced.