Quando il contratto finalizza il reato: in favore della nullità virtuale

According to recent judgements issued by the Italian Supreme Court, a contract concluded under duress which amounts to a crime of extortion is void ab initio. Such judgements echo a long-standing ruling concerning contracts resulting from the deceit of persons affected by immaturity or mental disability. Hence, nullity gains broader application at the cost of “voidability”, which most legal scholars identify as the applicable remedy when a contract results from a criminally unlawful conduct affecting the bargaining process. The essay examines the criteria used for selecting the appropriate remedy and concludes that contracts resulting from criminal conduct are void ab initio. The proposition is based on arguments that diverge from those relied upon by the case law. The essay asserts that the differentiation between rules governing conduct and rules governing contracts – which is employed in legal literature and case law to define the extent of nullity – is theoretically sound and justified from a normative standpoint. On closer inspection, the nullity of contracts resulting from criminally unlawful conduct remains consistent with such a distinction and ensures the attainment of suitable outcomes.