La prescrizione tra tensioni evolutive e torsioni involutive

The essay deals with the extinctive prescription, which in recent years has attracted the increasing attention of Italian scholars, especially following the European codification projects and the German and French reforms. The study aims to define some controversial points of the institute and to verify whether the conditions exist for a reform of certain aspects, pointed out by some legal scholars. To begin with, numerous theories about the effect of prescription are critically examined. According to a first thesis, prescription consists in a limitation of actions, which does not affect the right but only the ability to pursue that right in court. According to a second thesis, it causes a claim to be rejected, regardless of its foundation (so-called preclusive effect). According to a third thesis, prescription has a weaker effect, as the debtor may merely be granted a right to refuse performance. All these theories are refused, with the confirmation of the one more consistent with Italian law, stating that prescription extinguishes the civil obligation and the limited property rights. In addition, the essay explores the functions of prescription, wondering whether it consists exclusively in the release of the debtor, according to the currently prevailing opinion, or it also relates to the guarantee of legal certainty. Since the second thesis is preferable, the opinion in favor of the conventional derogation of prescription is critically opposed. In any case, the limits affecting the power of derogation of private individuals are examined de jure condendo. Finally, taking a cue from a recent decision of the Italian Court of Cassation, the comparison between prescription and Verwirkung - an institute developed by German authors and courts - is deepened. The essay concludes that Verwirkung is a sort of de facto prescription, left to the judge’s discretionary power and, therefore, conflicts with Italian law. Actually, the Italian system does not know alternatives between extinction by prescription, within the time prescribed by law, and extinction due to express or tacit waiver of the right.