Errore e reticenza tra reole di validità e regole di responsabilità

The essay focuses on the links between mistake as a defect in consent and pre-contractual duty of information, both governed by functional rules to ensure that parties consciously exercise their freedom of contract. From this perspective the author addresses the question of whether the expansion of information duties during negotiations also increases cases in which false or incomplete representation of facts by one of the contracting parties affects the validity of contract. In this regard, arguments can be drawn from the Italian legal system that exclude the relevance of the lack of due informations as misrepresentation causing invalidity. On the other hand, it is admitted that violation of pre-contractual duty of disclosure, within certain limits, can give rise to liability even where the contract is valid. Both compensatory remedies and contractual invalidity, in fact, protect the party who was mistaken or not duly informed, according to different strategies and methods, balancing this protection with the interest of the counterparty, who relied on the validity of the contract or invested resources to obtain such information. Given that validity and liability rules govern the same conclusion of the contract, it is possible to combine invalidity and compensatory remedies where the respective conditions for application exist. This two types of legal protection, in fact, even when they overlap, maintain their conceptual and functional autonomy, so that the remedies provided by the former do not obliterate those resulting from the violation of the latter.