Gli obblighi informativi precontrattuali nei contratti di investimento finanziario. Per l’armonizzazione dei modelli regolatori e per l’uniformazione delle regole di diritto comune

About the violation of precontractual duties and obligations of disclosure, the major question posed by interpreters, in our experience and in others similar to or dif- ferent from it, is if it is possible to qualify the case by general rules of contract law and to apply interpretative guidance that distinguish the rules of validity from the rules of conduct, being the firsts direct - primarily - to affect the contractual relationship, and seconds - primarily - to save the contractual relationship but raising liability (precontractual, contractual, by torts) against the defaulting party, or if it is not more appropriate distinguishing case from the case and, taking a functional perspective aimed at protecting the public interest together with the interest of the weaker party, and choosing the best suitable remedy. To answer such question, different paths can be followed. Making a recognition of the rules established in codes, casebooks, acts and draft bills, always in connection with European law. Elaborating a tripartition by contractual models, considering role and status of the parties, and thus distinguishing between contracts between private parties and contracts between professionals parties (C2C and B2B), contracts between professionals parties and consumers (B2C), contracts between professionals with greater contractual power and weaker professional parties, vulnerable to the abuse of economic dependence or anyway to the economic and contractual power of the dominant party (B2b). Assessing purposes by economic analysis of law and requirements of market. Referring to the large literature elaborated in recent years, many essays and contributions explore one or more of the above perspectives, which result deeply intertwined together but can be discussed separately for mere exposing reasons. The path chosen and followed in that contribution is the first, but - to draw a more complete scenario - also the other two paths should be developed, or otherwise be taken into account, at least in the background.

Guido Alpa, Gli obblighi informativi precontrattuali nei contratti di investimento finanziario. Per l’armonizzazione dei modelli regolatori e per l’uniformazione delle regole di diritto comune in "ECONOMIA E DIRITTO DEL TERZIARIO " 3/2009, pp 395-421, DOI: 10.3280/ED2009-003001