Risoluzione dei contratti svantaggiosi e restituzioni: un itinerario dentro, e fuori, i confini dell'interesse positivo

The essay addresses three themes that are transversally related to restitution following termination for breach of contract: (a) the entitlement of the party who has made a bad bargain to claim restitution in order to reach a better position than the one she would have been in had the contract been performed; to put it another way, the relevance that the contractual exchange may have in driving restitutions following breach of contract; (b) the countermeasures aimed at avoiding the risk of opportunistic recourse to restitution as a remedy for breach of contract; (c) the impossibility of counter-returning the performance in kind and the repercussions that it may have on the entitlement to claim restitution; the answer largely depending on the greater or lesser willingness to admit that the aggrieved party aiming at the restitution of the price is entitled to counter-return a sum of money in place of goods or services conferred on her by the breaching party.