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The Cause of the Contract in French and Italian Law: ‘I will Survive’

Published online by Cambridge University Press:  25 June 2025

Elena Bargelli
Elena Bargelli*
Affiliation:
Law Department, University of Pisa, Pisa, Tuscany, Italy
*
Email: elena.bargelli@unipi.it
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Abstract

Almost 10 years ago, the Ordonnance of 10 February 2016 reforming the French Civil Code (CC) removed the cause from the conditions for validity of the obligation. Thus, it broke with the tradition of the Code Napoléon, and a large number of civil codifications followed. Since 2016, French scholars have argued that, notwithstanding its conceptual implications, the disappearance of the formula of the cause has resulted in semantic rather than substantial changes. Whereas, in one opinion, the cause is still found underlying ‘contenu litice et certain’ (Article 1128), its various forms and functions today appear in several CC provisions.

Keywords

EU lawcontract lawFrench civil codeItalian civil code

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Type
Research Article
Information
Cambridge Yearbook of European Legal Studies , Volume 26 , December 2024 , pp. 121 - 137
Creative Commons
Creative Common License - CCCreative Common License - BY
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
Copyright
© The Author(s), 2025. Published by Cambridge University Press on behalf of Centre for European Legal Studies, Faculty of Law, University of Cambridge.

I. La cause est morte … vive la cause in the new French Civil Code? Setting the scene

It has been almost 10 years since the Ordonnance of 10 February 2016 reforming the French Civil Code (hereinafter CC) removed the cause from the conditions for the validity of the obligation. In doing so, the Ordonnance departed from the 1804 Code Napoléon,Footnote 1 which had inspired many codifications of the 19th century such as the Belgian,Footnote 2 Dutch,Footnote 3 Italian,Footnote 4 and SpanishFootnote 5 codifications. The previous reform project, the Avant-projet de réforme du droit des obligations et de la prescription (‘Catala Project’), had itself chosen to leave the cause untouched.Footnote 6 Since 2016, French scholars have, however, argued that, notwithstanding its conceptual implications, the disappearance of the formula of the cause would result in more semantic changes than substantial ones.Footnote 7 Indeed, one line of thought even suggests that the cause is now to be found in Article 1128 CC, which refers to the ‘contenu licite et certain’ (‘content which is lawful and certain’) of the contract. Article 1128 should today be understood as a general formula encompassing and condensing both the object and the cause of the contract.Footnote 8 Irrespective of this opinion, it is evident that the various forms and functions of cause find their place today in several provisions scattered throughout the Civil Code.

The 2016 reform seems to have preserved the previous state of the law while only the word cause has been removed.Footnote 9 Indeed, the question has arisen as to whether the new legal framework really covers all the issues previously resolved by reference to the cause, or whether its abolition was too drastic, with the result that something has been overlooked. A further, more ambitious question is whether the replacement of the general concept of the cause with its fragmented applications actually achieves the goal of improving modern contract law, at least as far as domestic disputes are concerned.

Neither question is new. Both have been the subject of heated debate in France since the reform came into force. The second is even more far-reaching and goes beyond the borders of the legal systems belonging to the Roman legal family, questioning the usefulness of the general and abstract concept of cause in contract law and envisaging a path similar to that taken by the concept of consideration in common law.Footnote 10 Although the posed questions are not new, the present article intends to revisit the debate on the cause of the contract by introducing a problem-oriented comparison between its French and Italian applications. It will specifically examine whether the French reform currently offers alternative solutions to those previously adopted, employing the notion of cause. Furthermore, it will ascertain whether, subsequent to the 2016 reform, the two legal systems are, in actuality, pursuing a convergent or a divergent trajectory.

This investigation is crucial for both historical and contemporary reasons. Indeed, French and Italian contract law have been intertwined since the first Italian Civil Code of 1865. After the unsuccessful attempt to create a French-Italian code of obligations and contracts in 1927,Footnote 11 the current Italian Civil Code of 1942 maintains many similarities with the Code Napoléon and, therefore, still recognises the cause as a requirement for a valid contract.Footnote 12 More importantly, in both jurisdictions, the cause has received growing doctrinal attention and has been increasingly applied since the 1990s.Footnote 13 Indeed, the rising number of references to the causa in Italian case law since the 1990s has prompted writers to characterise the development of the concept as a success storyFootnote 14 and even as an idol of courts (‘idolum fori’).Footnote 15 The different paths taken by French and Italian law since 2016 make the comparison between the two systems, which belong to the same legal family, even more compelling. In the years immediately following the French reform, the debate on the cause was revived in Italian literature; however, unlike in France, critical views towards the doctrine of the cause and proposals to remove this concept from the Civil Code have remained a minority.Footnote 16 The most recent reform of the Belgian law of obligations in 2022 has also contributed to the resurgence of the Italian debate on the cause. By keeping this concept in Articles 5.53–5.55 of the new Civil Code, the Belgian legislator, whose Article 1804 was inspired by the French Civil Code, has distanced itself from today’s French model, thus demonstrating the persisting vitality of the concept of cause. After almost 10 years, the time has come to compare the applications of the cause and assess their diversity.

This article begins with a brief review of the criticisms of the concept of cause that underpin the reforms finally instituted by the French legislator in 2016 (Section II). A short overview of the provisions that uphold previous applications of the cause of the contract will be provided in Section III. A description of the state-of-the-art of the doctrine on the cause (causa) under Italian law follows (Section IV). The article will then focus on several practical issues (‘bare agreement’, illusory and trivial exchanges, unequal bargains, frustration of contract) that the concept of cause has historically and more recently addressed in both systems (Sections V–IX). In conclusion, by directing attention towards Italian law, this contribution investigates the possible consequences, in Italy, of adopting a casuistic approach to those issues as an alternative to a general concept of causa. This is done with the objective of enhancing legal clarity and reducing or eliminating criticism of the cause (Section X). In Italy at least, the general concept of the cause remains essential either to provide a uniform justification of the cases currently resolved by reference to the cause or to allow a degree of flexibility that may be helpful in dealing with new cases.

II. Grounds for criticism of the cause of the contract at the heart of the 2016 reform

Several criticisms of the concept of cause of the contract lie at the heart of the choice made by the French legislator in 2016, and these were already present in the previous attempts to reform the Code Napoléon. Most of the criticisms have been raised since the beginning of the 20th century, in both French and Italian law. In Italian law, causa was coined as the ‘fourth side of the triangle’, a metaphor for the futility of the concept, and this criticism has persisted over the years.Footnote 17 Similarly, Marcel Planiol qualified the theory of cause as ‘fausse’ and ‘inutile’.Footnote 18 According to this line of criticism, the cause is superfluous and can be replaced by simpler, less enigmatic concepts such as the content and the object of the contract.Footnote 19 Another concern was that it is a dangerous vehicle for paternalism and an enemy of freedom of contract.

In addition to being accused of being superfluous and paternalistic, the cause is usually blamed for being polysemic, having taken on different meanings and forms over the last two centuries. Indeed, numerous and even contradictory formulations have famously followed one another: cause of the contract versus cause of the obligation; subjective versus objective cause; cause as illustrating the socio-economic function of the contract versus cause as the actual economic function of the individual transaction; and cause as a requirement of the act versus cause as a way of assessing the substantive fairness of the contractual relationship.Footnote 20 All formulations reflect changes in both the socio-economic context and the general understanding of the relationship between private autonomy and judicial control of the contract.Footnote 21 Recently, and in the same vein, several authors have criticised the hypertrophic use, or even misuse, of the concept of cause. According to them, such hypertrophy and over-inflation of the concept ultimately undermine legal certainty and, as a consequence, make national contract law less attractive for international commercial parties.Footnote 22 This leads to the final criticism, which focuses on the alleged incompatibility of the cause with international commercial practice, an assumption that influenced the decision to remove the cause from being one of the requirements for the validity of the contract.Footnote 23

It is beyond the remit of this article to explore whether the cause of the contract is actually incompatible with the needs of international trade, but we note that the cause as a requirement for the conclusion of a valid contract does not appear in the Principles of International Commercial Contracts (PICC)Footnote 24 or in any of the three academic drafts of a European civil code (the Draft Common Frame of Reference (DCFR), the Principles of European Contract Law (PECL), and the Code européen des contrats (Avant-Projet)).Footnote 25 This trend had been pioneered by the Vienna Convention for the International Sale of Goods (CISG), which does not deal with the validity requirements of the contract (Art. 4). By elevating mere consent to being a sufficient condition for the conclusion of a contract, the PICC and those three academic drafts intend to strengthen contractual freedom, unless vices of consent or gross disparity can be proved. Since the beginning of the 21st century, these texts have undoubtedly had an influence on the new (attempted or actual) reforms of the civil codes.

However, while the accusations of paternalism, hollowness, polysemy, and hypertrophy reflect specific weaknesses in the concept of cause, as experienced in both French and Italian law, its alleged incompatibility with the needs of international commercial contracts is not a sufficient reason to remove the concept of cause from a national legal system. Indeed, it is quite obvious that the parties to international commercial contracts need an adequate guarantee of contractual freedom, and that both cause and consideration would not be easily understood outside their respective legal environments, with the risk of uncertainties and misunderstandings. It does not follow, however, that the cause of the contract is an unnecessary or outdated conceptual tool in domestic transactions, especially if they involve one or both non-business parties. It is one thing for international and European restatements of contract law to be a source of inspiration for reforms of the national civil codes; it is quite another for concepts standing at the heart of national contract law to be set aside without empirical verification of their remaining value.

III. The substitutes of the cause in the current French Civil Code

The reform of the French Civil Code takes into account the aforementioned criticism by fragmenting and upholding the different functions and applications of the cause. In particular, it adopts the objective understanding of cause by codifying, in Articles 1106–1108 CC, the taxonomy of contracts traditionally based on the cause itself.Footnote 26 More importantly, the cause de l’obligation (cause of the obligation) is implicit in a number of provisions that embody and generalise the previous case law. Article 1169 in particular seems to incorporate the well-established understanding of the cause as contrepartie of the obligation (ie what has been agreed in return for the benefit of the person undertaking an obligation). It codifies its forms as illusoire or dérisoire, that is, as a sanction of the illusory or derisory character of the performance of the contracting party, also well established in previous case law,Footnote 27 and which recalls the illusory promise familiar to the English debate on consideration.Footnote 28 In the same vein, Article 1170 (‘Any contract term which deprives a debtor’s essential obligation of its substance is deemed not written’) confirms the solution adopted by the French Court of Cassation in the well-known Chronopost Footnote 29 and Faurecia Footnote 30 cases, while restricting its application to clauses limiting liability that seek to undermine the scope of the principal obligation.

At the same time, the subjective understanding of cause as purpose (‘but’), which is reported to have been predominant in the case law prior to 2016,Footnote 31 still appears in Article 1162 CC, where it mentions both the stipulations and the purpose of a contract. In addition, Article 1135 gives relevance to the mistake in the motive of the parties’ reasons for entering into the contract (‘erreur sur un simple motif’), provided that the parties themselves expressly made it a determining element of their consent,Footnote 32 thus solving problems previously addressed by the increasing emphasis on the subjective understanding of the cause.Footnote 33

Lastly, Article 1186, without expressly mentioning the cause, takes inspiration from the words of Henri Capitant (L’obligation ne peut vivre qu’autant qu’elle reste appuyée sur sa cause)Footnote 34 in stating that a contract devient caduc (terminates) when one of its essential elements ceases to exist. This provision, in turn, consolidates the doctrine which, prior to the reform, invoked the failure of the cause as a ground for terminating a contract, despite the fact that the Code Napoléon did not mention this. This doctrine was applied by the Cour de Cassation, for example to a mortgage linked to a cancelled contract of sale.Footnote 35

IV. The cause of the contract in the Italian Civil Code and its current prevailing understanding

Unlike in France, the Italian legislator has not yet reformed the 1942 codice civile, the Italian Civil Code (hereinafter It CC). According to Article 1325 no 2 It CC, the presence of a causa is necessary for the validity of a contract. In addition, the illegality or immorality of the causa renders the contract null and void under Article 1343 It CC. Thus, the causa is considered illegal when the contract aims at circumventing the application of a mandatory rule (Art. 1344 It CC). Furthermore, under Article 1345 It CC, the illegal or immoral motive common to both parties is a ground for nullity if it is the only reason that led the parties to conclude the contract.

Even more importantly, the 1942 legislator, in recognising the freedom of the parties to conclude contracts not regulated by law, required them, under Article 1322, paragraph 2 It CC, to ‘pursue interests worthy of protection according to the legal system as a whole’ (‘meritevoli di tutela secondo l’ordinamento giuridico’). This expressed the need for the state to control private autonomy and to adapt it to a social function. This original provision is absent from the codes that inspired the Italian law of obligations in 1942 (ie the French but also the German codes). It was originally identified with illegality or immorality, or limited to futile and economically worthless contracts without binding legal effects.Footnote 36 After almost 50 years in which this provision was rarely applied in practice, it has, however, been revived by the academic debate and by the courts over the last three decades, and it has earnt its own place in contract law doctrines as a concept related to the notion of cause.Footnote 37

Accordingly, Article 1322 has been used as a further textual basis for a substantial review of contracts not regulated by law, together or separately from any review rooted in the cause of the contract. In particular, under a rather vague definition given by the Corte di Cassazione, a contract that is contrary to morality, the economy, or public order as manifestations of the principle of solidarity would be ‘unworthy of legal protection’.Footnote 38

The evolution of these concepts under Article 1325 no 2 and Article 1322 It CC provides an insight into how both of them have responded to emerging needs and filled legislative gaps over the years.Footnote 39 Starting with cause, after being referred to for several decades as the socio-economic function of the contract,Footnote 40 the cause of the contract has, since the mid-1990s, been understood and used intensively by the courts as the actual economic purpose of the resulting contract. This understanding was developed by Giovanni Battista Ferri in the 1960sFootnote 41 to overcome the then-prevailing theory of cause as the social-economic function of the contract, a theory itself developed by Emilio Betti at the beginning of the 20th century.Footnote 42 Ferri’s theoretical perspective was originally proposed on the basis that a contract might be declared illegal or immoral, even if it formally complied with a given legal framework.Footnote 43 The scrutiny based on the actual purpose of a contract was later developed to assess the existence of a cause (‘causa concreta’) and it has become dominant in the academic literatureFootnote 44 and in the case law. By giving prominence to the interests that the contract is specifically intended to realise, Italian law followed a path similar to that taken in France towards a more subjective understanding of cause (the ‘subjectivisation de la cause’), which, by remaining separate from the motifs, focuses on the interests that the parties share and that are at the heart of their commitment (‘cause finale’).Footnote 45

Contrary to Emilio Betti’s original conception, the theory based on the actual economic purpose of the contract does not primarily aim to subject private autonomy to public control. Instead of abstract taxonomies, the notion of cause as the actual economic purpose of the contract covers the interests jointly and objectively pursued by the parties, with the aim of reconstructing them, even beyond the express contractual terms, in the light of circumstances external to the contract. By reducing the distance between cause in the objective and in the subjective sense, this new understanding appears as a double Janus, strengthening party autonomy, on the one hand, and introducing further judicial control of party autonomy, on the other.

Consequently, the notion of ‘concrete cause’, ‘causa concreta’, has resulted in an increase in the applications of nullity for lack of cause in certain instances, while it has led to a reduction in applications in other cases. Indeed, as a result of the application of this theory, contracts without apparent consideration or justification may be enforced if, as a result of their reconstruction, the objective purpose and meaning of the agreement are revealed. As an example of this tendency the courts have rejected the idea that expressio causae (ie the explicit reference to an external basis for an attribution of validity) is indispensable for the validity of an act, provided that its objective justification can be reconstructed in the light of all the circumstances of the case.Footnote 46

These doctrinal discussions, which have subsequently found their way into jurisprudence, are undoubtedly at the heart of both the wide application of the concept of cause currently in Italian law and the revival of the ‘interests worthy of legal protection’ under Article 1322 paragraph 2 It CC, as mentioned earlier. However, a change in the theoretical understanding of cause would not be a sufficient explanation if it were not combined with the undoubtedly creative attitude of the Italian courts, and the substantial need to update the remedies granted by the Civil Code, both in terms of contractual unfairness and in terms of supervening circumstances. Thus, although the Italian Civil Code provides for remedies for vices of consent (Arts. 427ff CC), laesio enormis (Art. 1448), impossibility of performance (Art. 1463), and supervening hardship (Art. 1467), their strict requirements have prevented Italian courts from extending the scope of those provisions beyond their wording, while the flexible concepts of cause and ‘interests worthy of legal protection’ have allowed the courts to adapt contract law to new needs of protection. Therefore, whereas the classical applications of cause as a ground of nullity for lack of cause have decreased their importance, the judicial scrutiny of the contract aimed at redressing the imbalances between the parties has received increasing attention.

V. The scrutiny of a contract based on its cause: a few practical issues

In order to assess both the impact of the replacement of the term ‘cause’ by alternative or similar concepts in French law and their distance from the current applications of this term in Italian law, a list of practical questions needs to be identified. The role of the cause in the reconstruction and qualification of both typical and atypical contracts is the logical premise of most of its functions,Footnote 47 and, therefore, must be briefly outlined.

In French law, as mentioned in Section III, the new Articles 1106–1108 CC expressly codify the traditional taxonomies of contracts based on the cause: synallagmatique/unilatéral (synallagmatic/unilateral); à titre onéreux/à titre gratuit (onerous/gratuitous); commutatif/aléatoire (commutative/aleatory); unlike the original Code Napoléon, they provide definitions that belong to a very well-established doctrinal background.

Similar classifications are not explicitly included in the Italian Civil Code. However, they are indisputably used as criteria for the classification of contracts in private law textbooks. Traditional taxonomies are the result of an interpretative process that highlights the abstract objective of a contract, common to all those belonging to the same category, and based on the objective understanding of the cause, identified by the presence or absence of consideration and the way in which the consideration and the performance interact. In both French and Italian law, the trend towards a ‘subjective cause’ (‘subjectivisation de la cause’) has led this concept to performing a further interpretive function, as a means of identifying the real objective pursued objectively and jointly by the parties, beyond abstract classifications (as illustrated in Sections III and IV).

The clarification of ambiguous clauses and the reconstruction of implied terms are among the additional results of the cause-based interpretation process. For example, a man died while flying a leisure helicopter, and the Corte di Cassazione was asked whether his widow could claim the benefit of the life insurance policy he had contracted. To determine whether a clause in a life insurance policy excluded cover if the accident occurred while the insured was on board an aircraft, the Court recalled the understanding of the causa as the real purpose of the contract, and emphasised the importance of examining the circumstances under which the insurance contract was concluded in order to interpret the scope of the disclaimer. This was particularly pertinent given that the insured individual was an amateur pilot who intended to insure himself against the risks associated with practising his hobby, with the consequence that the clause could not be interpreted as excluding the insurance cover while the insured party was piloting an aircraft.Footnote 48 Most of the issues that the notion of cause is called upon to solve stem from its role as an interpretative tool to reconstruct contractual terms. Thus, while the cause is not usually used to select legally binding agreements from situations where the parties do not intend to engage,Footnote 49 one of its traditional functions is to prevent the enforcement of a nudum pactum in both French and Italian law.Footnote 50 This is a ‘bare’ agreement, which, in concealing the very reason behind it, cannot be classified under the taxonomies of contract cited earlier, and is considered unworthy of grounding an action in court. A further level of ambiguity arises where the contract contains a contrepartie, and therefore falls within a well-known legal framework, but makes no practical sense. This is the case, for example, with a contract concerning a res sua (ie an element that is already in the possession of the other party) or a res extinta (eg an insurance contract against the theft of something that has already been stolen), or with a contract of sale that has a merely symbolic price (as in the exemplary sale nummo uno, ie at one euro). The reason for the nullity of these agreements is not the state’s intention to limit private autonomy but rather the need to identify the rational ground and the minimum seriousness of the needs met by a contract, which is the threshold for enforcing the agreed obligations.Footnote 51

A second application of the cause manifests itself when a contract has an external legal basis—as in the case of a guarantee or a benefit conferred in performance of a previous obligation—which results in the contract being non-existent, void, or failed. In addition to these main functions, the cause is also often called upon to perform tasks on the borderline with other conceptual tools. Three situations come to mind. The first situation concerns the absence of a circumstance upon which the parties have implicitly based their agreement (Fehlen der Geschäftsgrundlage, presupposizione) and without which they would not have given their consent to the contract. Here, too, the cause serves as a means of guaranteeing the will of the parties. The second issue relates to the existence of unbalanced exchanges. The cause serves as an (often concealed) test of fairness, when no alternative and adequate remedy is provided for, as was the case in the original Code Napoléon (see Art. 1118) and as is still the case in the Italian Civil Code (where the general action for rescission has very restrictive requirements under Art. 1448). Here, private autonomy is subject to a more thorough examination. Third, the cause plays a role not only at the time of the conclusion of the contract but also after this turning point, as a parameter to assess the impact of supervening circumstances on the agreed synallagma and its survival. The following paragraphs will briefly deal with this set of issues, providing insight into the possible practical effects of the abolition of the cause in French law, compared to the current Italian legal framework.Footnote 52

VI. Nuda pacta, illusory and trivial exchanges under current French law

One of the practical consequences that the application of the lack of cause has traditionally entailed in Italian and French contract law is the nullity of contracts entered into without any real justification (ex nudo pacto non oritur ius).Footnote 53 After the entry into force of the new Article 1128 CC, the question arises whether the lack of a contrepartie can still lead to nullity in France, as it did under the former Article 1131.Footnote 54

Several textual arguments support an affirmative answer. First, Article 1163 still requires the object of the obligation to exist. Second, by requiring that the contrepartie convenue not be illusoire ou dérisoire, Article 1169 provides an a fortiori argument for the unenforceability of mere agreements as well as promises or transfers of assets based on non-existent external reasons. Indeed, the contrepartie is implicitly required to exist first, with the consequence that, for example, the absence of a dette préexistante may justify the invalidity of a promise to pay. In addition, Article 1169 presupposes a prior investigation into the qualification of the contract as onerous or gratuitous, which a nudum pactum does not allow any court to do. Third, Article 1128 CC requires legal and certain ‘content’ as a condition for the enforceability of a contract. ‘Content’ is a broader and less concrete concept than ‘object’, and, according to one view, would merge both ‘object’ and ‘cause’, with the consequence that the cause would ‘rise from its ashes’.Footnote 55 If this were not the case, and the term ‘content’ were completely autonomous, it would still be questionable whether a mere or naked agreement could satisfy such a requirement in terms of certainty.

In order to measure the scope of application of the newly formulated Article 1169 CC, the existing case law provides reliable guidance. In fact, the new provision incorporates and ratifies several grounds for nullity confirmed by previous judicial practice, which used the ground as a means of assessing the practical sense of a contract beyond its compliance with a legal framework.Footnote 56 The main groups of cases the French Cour de Cassation dealt with are trivial prices (vente sans prix sérieux, as in the case of the transfer of company shares for a symbolic price),Footnote 57 the absence of a contrepartie réelle (as in the case of a contract for the rental of video cassettes where the economic purpose was impossible to achieve),Footnote 58 as well as typical cases (‘Fallgruppen’) falling under the heading of ‘cause fausse’, including the well-known cases of ab initio impracticability of a contract concerning a res extincta or a res sua. Accordingly, a guarantee given while the debtor was already insolvent would still be void according to the new wording of Article 1169 CC.Footnote 59

In this context, even the well-established applications of the lack of cause to aleatory contracts (‘contrats aléatoires’) are confirmed. This includes, in particular, the group of cases concerning life annuities concluded with very old or seriously ill beneficiaries, where the alea is considered to be non-existent and the contract is therefore declared null and void.Footnote 60

Finally, the reform does not explicitly address the absence of circumstances upon which the parties implicitly based their agreement even without mentioning them. However, Article 1135 CC allows a contract to be challenged on the grounds of mistake as to the decisive reason for the consent, which must be assessed in light of the circumstances under which the consent was given (see Art. 1130).

VII. Bare promises, illusory and trivial exchanges under current Italian law

It is not surprising that, according to Article 1325 no 2 It CC, a ‘bare promise’ (nudum pactum) is, in principle, void for lack of cause under Italian law. Some cases help to illustrate the application of this ground of nullity. Thus, in 1992, the Italian Corte di Cassazione declared null and void a contract that transferred the concession for the operation of some international bus routes to another company, without providing any apparent financial consideration.Footnote 61 A further application is the free granting of an option to buy a property.Footnote 62 A quite controversial case is the practice of selling shares just before a dividend is paid and buying them back afterwards, with the underlying purpose of saving tax. After considering this practice of dividend stripping as belonging to a unique transaction, the Corte di Cassazione declared it null and void for lack of cause, arguing that the parties had no real interest in the exchanges assessed as a whole, apart from tax savings (an interest that was apparently not considered worthy of legal protection).Footnote 63

Since the 1990s, the number of cases of nullity of a ‘bare promise’ has decreased, together with the successful application of the cause as the real economic purpose of a contract (considered in Section IV). As the concept of cause leads to an appreciation of the overall and comprehensive understanding of economic transactions and the practical results sought by the parties, even beyond their express terms, the Corte di Cassazione has begun to recognise the validity of agreements transferring rights without consideration, provided that they are considered worthy of legal protection. This has been the case, for example, in relation to property transfers made in the context of both post-separation family arrangementsFootnote 64 and trust.Footnote 65 According to a well-established doctrine of the Supreme Court, first-demand guarantees are also considered valid, subject to the exceptio doli (ie the defence of bad faith)Footnote 66 and other defences, including the non-existence of the obligation to be guaranteed, and the immorality or illegality of the underlying contract.Footnote 67

With regard to exchanges for a trivial, symbolic, or ridiculous price, agreed in exchange for the transfer of a right or the undertaking of an obligation, applications for nullity for lack of cause are rare, as the courts tend to base their nullity on specific provisions of the Civil Code other than Article 1325 paragraph 2 It CC.Footnote 68 Nevertheless, the overall consideration of the contractual relations between the parties may prevent the nullity of the contract, even if the price is derisory (eg the simultaneous acquisition of shareholdings that impose additional financial burdens on the holder).Footnote 69 By comparison, the reasoning based on a grossly disproportionate synallagma applies to a large number of cases concerning life annuities. According to an uncontroversial doctrine of the Corte di Cassazione, life annuities are null and void for lack of cause if they are concluded with a person who is extremely old or seriously ill,Footnote 70 or the contrepartie is disproportionately low.Footnote 71 Once again, the parallels with French law are striking.Footnote 72

A third group of cases are resolved by invoking nullity for lack of cause. These cases focus on ‘absurd’ contractual exchanges which, although they comply with a recognised legal framework, pursue interests which in practice turn out to be futile. Clear examples of nonsensical contracts are those concerning res sua or res extincta, which border on bilateral mistake. Examples include the following: a servitude purchased by the owner of an estate who was already entitled to the servitude as a result of a previous usucaption;Footnote 73 an owner who agrees to carry out various work in the courtyard of a condominium in exchange for permission to improve the view from their property, without knowing that the law grants them this right in any case;Footnote 74 a mutual undertaking to enter into an identical subsequent preliminary contract;Footnote 75 a consultancy contract between a company and a person who is also a director of the same company;Footnote 76 guarantee given by a shareholder who has unlimited liability for the company’s debts;Footnote 77 and a professional services contract with an engineer to obtain a certificate of habitability for an apartment, without knowing that the municipality has already issued such a certificate.Footnote 78 The contractual issue arising from such cases concerns the practical economic meaning of the contract. Consequently, if the agreement, despite its apparent nonsense, pursues legitimate interests, it remains valid (as the Italian Supreme Court has held with regard to mutual promises to conclude a further preliminary contract).Footnote 79 Against this background, it is also not surprising that nullity for lack of cause has been extended to cases where a factual or legal situation assumed by both parties as an implicit basis for their consent subsequently turns out to be non-existent ab initio.Footnote 80

VIII. Cause and unequal bargains under French and Italian law

In the case of illusory and trivial exchanges,Footnote 81 the French cause traditionally addresses problems of both manifestly unbalanced and irrational bargains by emphasising the opacity of their content and the (abstract or actual) non-existence of a contrepartie. Indeed, addressing problems of inequality in the contractual exchange is part of the DNA of the cause, although a variety of alternative remedies have been developed in legal systems since the laesio enormis was extrapolated from Roman sources.Footnote 82 Wherever the contrepartie is not symbolic but performance and counter-performance are grossly unbalanced, a number of slightly different problems arise. In particular, the various constellations of asymmetries in bargaining power come into play. Instead of introducing a remedy similar to the unconscionability test or the general action for laesio enormis (as the Italian legislator did in 1942), the French legislator dealt with the problem of unequal bargain in a series of provisions.

First, the doctrine of the ‘contrepartie illusoire ou dérisoire’ is well suited to dealing with situations of inequality of bargaining power that affect the réalité of the counter-performance. This is the case of life annuities, where the underlying individual vulnerability of the beneficiary leads them to accept an annuity that is so predictably short-term that it defeats the purpose of the contract.Footnote 83 Additionally, the Chronopost and Faurecia cases applied this doctrine to solve the problem of unfair contractual terms which render the main obligation in business-to-business contracts meaningless.Footnote 84 This doctrine is now reflected in Article 1170 CC. Further, the landmark Point club Vidéo decision, which used the cause to challenge an unfair and unilaterally unsuccessful bargain between two businessmen, was not subsequently confirmed by the French Cour de Cassation: a development that Article 1168 CC implicitly acknowledges when it clarifies that inequivalence in exchange as such is not a ground for nullity, unless the law provides otherwise (as it does in Art. 1171 CC).Footnote 85

By comparison, the solutions upheld in Articles 1170 and 1168 of the French Code, without making reference to the cause, could also be achieved in Italy by using the causa as it is currently understood. In fact, the Grand Chamber of the Corte di Cassazione, when considering the validity of insurance contracts with claims-made clauses, confirmed that they are ‘worthy of legal protection’ and finally used the absence of cause both to assess the feasibility of the contractual purpose and to avoid jeopardising the insurer’s liability.Footnote 86 Another application of the doctrine de la cause marks a difference between the paths taken by French and Italian law in dealing with issues of unequal bargaining. Since the financial crisis of the 2010s, investment contracts have been examined by Italian courts under the doctrine of cause, with the aim of providing non-professional investors with remedies against breaches of EU regulatory standards in financial markets. While EU secondary legislation does not provide investors with specific individual rights and remedies, but rather imposes standards of conduct on financial parties, the remedies offered by domestic laws of obligations are their only available means of protection and private enforcement of business conduct rules.Footnote 87

In particular, some contracts did not pass the test based on either the lack of cause (Art. 1325 no 2 CC) or their unworthiness of legal protection (Art. 1322 para. 2 CC). Thus, the Myway Footnote 88 and Foryou Footnote 89 contracts were declared unworthy of legal protection because of the gross disparity between the expected profits and the interest paid on the loan, combined with the unfair exploitation of the investors’ need for additional benefits and the lack of information on the risks associated with the financial product.

Finally, a more flexible approach was adopted for interest rate swaps, which the Grand Chamber of the Italian Supreme Court considered to be ‘worthy of legal protection’, subject to certain restrictive conditions regarding transparency and disclosure of costs and risks.Footnote 90 Even in the case of leases with indexation clauses, the Grand Chamber ultimately adopted a ‘softer’ approach, affirming that they were ‘worthy of legal protection’ and denying that such clauses could affect the nature of the contract and the essential obligations of the parties.Footnote 91 Therefore, in their attempts to build a bridge between EU vertical standards in financial markets and contract law, Italian courts, like other national courts, aim to accommodate individual contractual justice and regulatory objectives by using different tools.Footnote 92

IX. Cause as a means of empowering the scope of frustration under current French and Italian law

Under French law, the new Article 1186 CC put an end to the use of the cause as an argument for terminating a contract for a supervening failure of the synallagma, notwithstanding the fact that it implicitly confirms the solutions previously adopted by reference to the concept of cause. On the other hand, the new Article 1195 CC gives relevance to an unforeseeable change of circumstances that renders performance excessively onerous for a party who had not accepted the risk of such a change, thus expressly recognising the imprévision (hardship) and allowing the adaptation of a contract.Footnote 93

Conversely, under Italian law, the cause still plays a role as a means of extending the scope of termination beyond the wording of the existing provisions of the Civil Code. Thus, frustration of contract is limited to the impossibility of the debtor to perform the agreed obligation (Art. 1463 CC), while only in very limited circumstances will it apply to a supervening gross imbalance between performance and consideration (Art. 1467 It CC). Furthermore, frustration of contract does not cover situations where the agreement is implicitly based on circumstances that existed at the time of the conclusion of the contract and subsequently cease to exist.Footnote 94

In Italian law, although the initial absence of such an implicit basis is a ground for nullity,Footnote 95 its subsequent absence allows the interested party to claim termination, since, as the Supreme Court argues, such a change in circumstances (eg a change in a town plan) would result in the cause of the contract ceasing to exist. Accordingly, the doctrine of ‘presupposizione’ (ie the supervening failure of the implicit basis of the agreement) is well established in the case law and fills a clear gap in the Italian Civil Code.Footnote 96 The Corte di Cassazione took a step forward in defining the scope of frustration in a series of decisions in 2007. In the first case, a couple booked a hotel, but the husband unexpectedly died before arrival. In the second case, a consumer booked a package holiday, but an epidemic then broke out in the destination country. Under the Italian Civil Code (Art. 1463 It CC), a cancellation would not be allowed, as a supervening impossibility to enjoy the benefit of the service is irrelevant. However, the Corte di Cassazione concluded that the contract may be annulled if an unforeseen circumstance radically alters the purpose of the contract,Footnote 97 using the cause as a means of interpreting the parties’ intentions, and thereby redistributing the risk of the bargain and extending the scope of frustration. This line of reasoning has been followed in subsequent judgments of the Corte di Cassazione concerning tourism contracts.Footnote 98

X. Comparative considerations: ‘I will survive’

The comparative overview of the substitutes of the cause in France and the various applications of the causa in Italy lead to several observations. As far as the development of the doctrine of the cause is concerned, there has been a tendency towards its subjectivisation in both jurisdictions since the beginning of the 1990s.Footnote 99 This general trend is also reflected in the formulation of Article 5.53 of the new Belgian Civil Code, which carries on with cause as a requirement for the validity of a contract and embraces its definition as a motive that is known or should have been known by the other party, thus focusing on the reconstruction of the purpose common to the parties.Footnote 100

This understanding of the cause gives the courts the power to assess the actual and objective purpose jointly pursued by the parties in concluding the contract, rather than merely to check its conformity with a recognised legal framework (a ‘type’ of contract). In this way, the cause plays a role in both the interpretation and the construction of contracts beyond their textual elements, while the actual feasibility of the synallagma and its projection into a substantive arrangement of interests are further pieces of the puzzle. As a result, in both the French and the Italian legal systems, there has been a shift away from cause as a minimum requirement for judicial enforcement of an obligation to cause as a means of controlling the effectiveness of private autonomy.Footnote 101 There has also been a shift away from a public policy conception of this element towards an emphasis on protecting party autonomy against irrational or opaque arrangements of interests. In some cases, the Italian courts have even gone too far in using the flexible concept of ‘causa in concreto’ as a panacea, with the double result of its hypertrophic growth and loss of conceptual precision. The group of cases where the cause is applied to extend the scope of frustration of contract is to be cited as a main example of this hypertrophic tendency.Footnote 102

In this context, our comparative analysis clearly shows that, after 2016, the answers given by the new provisions of the French Civil Code to the selected questions mentioned earlier (nuda pacta and illusory and trivial exchanges; unequal bargains; scope of frustration) will presumably be the same as those previously given by the French courts and those currently applied by the Italian case law by using the doctrine of the cause. Consequently, it can be deduced that the two systems will remain in harmony in the near future, at least as far as solving these problems is concerned. This conclusion reinforces our original doubts as to whether the Italian legislator, in reforming the current Civil Code, should follow the French path of replacing a general concept with fragmented, casuistic provisions, when the Italian Civil Code itself was inspired by the French legal tradition.Footnote 103

In reality, the hypertrophy of the cause is owinng to a certain judicial activism that has attempted to fill the gaps left by written rules that have become obsolete. In this sense, a reform of the Italian Civil Code should without a doubt introduce ad hoc rules for most of the issues mentioned earlier, such as inequality in bargaining and unfair exploitation,Footnote 104 the Italian equivalent of the German doctrine of the disappearance of the basis of the transaction (Wegfall der Geschäftsgrundlage),Footnote 105 frustration, and hardship.Footnote 106 Indeed, invoking the general doctrine of the cause leaves several uncertainties as to the remedy applicable to the mentioned contractual failures. At the same time, the introduction of ad hoc remedies would reduce both the hypertrophy and the paternalistic flavour of which this doctrine is accused.

There is, however, a ‘hard core’ of contractual issues that the doctrine of cause is suited to resolve in both French and Italian domestic litigation, as it revolves around the illuministic idea of the contract as a rational and reasonable product of the parties’ will rather than a mere agreement. The cases of non-existent, illusory, or trivial contrepartie—including those concerning the lack of an external legal cause of an act—form the contours of this hard core.Footnote 107 Changing the name and removing the word cause, while retaining the previous solutions, therefore does not improve clarity but, rather, leaves the general concept in the background. This would be particularly true in Italy, where it is the general term causa that tends to evoke and absorb such a hard core of issues. Nor can the removal of the cause in French law be justified by concerns about the polysemy of the word, which simply reflects the historical diversity of the understandings of private autonomy.

On the contrary, maintaining the general concept of the cause in legal systems where it has been developed over centuries would be essential either to provide a uniform justification of the cases currently resolved by reference to the cause or to allow a degree of flexibility that may be helpful in dealing with new cases.Footnote 108 Since legal arguments are relevant in adjudicating rights and remedies, the doctrine of the cause could still play a role even if the legislator introduced a specific rule to solve each problem falling under the heading of the ‘lack of cause’. In this regard, the flexibility of the cause argument facilitates its function as a gap-filler in addressing the issue of the horizontal effects of EU regulatory standards in financial contracts. In this capacity, it functions as a unifying element, facilitating a connection between the EU’s vertical harmonisation framework and the national general rules of contract law.Footnote 109 Further, the extensive use of the cause argument in the construction of contracts is also explained by the flexibility of the argument which is employed by case law in order to justify the most appropriate responses to the aforementioned contractual failures.

The courts could, in principle, have resorted to alternative conceptual tools to address the need for novel contractual remedies and to modernise contract law. For instance, in Italian law they could have expanded the scope of rescission (Arts. 1448ff CC), the concept of impossibility of performance (Arts. 1463ff CC), or the supervening imbalance between performance and counter-performance (Art. 1467). However, this would have necessitated a greater degree of argumentative effort to achieve the result of gap-filling the contract, whereas the cause offers a larger margin of interpretive freedom, albeit with the requirement of accuracy and judicial self-responsibility in dealing with it.

It is, further, obvious that a cause-based reasoning requires a cultural and legal environment that is familiar with this concept. It is, therefore, understandable that, while being silent on the lack of cause issues, the Principles of International Commercial Contracts, the Principles of European Contract Law, and the Draft Common Frame of Reference rather opted to dealing with gross disparity and unfair exploitation by means of an ad hoc rule, which details the circumstances under which one party has taken advantage of the vulnerability of the other party and, therefore, the unbalanced contract may be declared void (see Art. 3.2.7 PICC, II.-7:207 DCFR, 4:109 PECL). Provisions on exploitation of unequal bargaining power, however, do not cover all lack of cause issues, and the latter rather call into question the application of further flexible concepts such as good faith and exceptio doli.

At national level, then, the choice to confirm the concept of cause (albeit in a narrowly defined understanding) as ‘reason’ (raison d’être) of the contract must ultimately be seen as a compromise between an overly general concept and its elimination, and certainly as a paradigm for legal systems belonging to the Romanic family.Footnote 110

References

1 Art. 1131 of the original 1804 Code civil provided: ‘L’obligation sans causa, or sur une fausse cause, or sur une cause illicite, ne peut avoir aucun effet’ (The obligation without a cause, or based on a false cause or on an unlawful case, shall have no effect).

2 See Art. 1131 of the Belgian Civil Code of 1804. The Code was reformed between 2020 and 2024.

3 See Art. 1131 of the Dutch Civil Code of 1838. The Code was replaced with a new civil code in 1992.

4 See Art. 1104 of the Italian Civil Code of 1865. The Code was replaced with a new civil code in 1942.

5 See Art. 1275 of the current Spanish Civil Code.

6 For a comparative analysis, see J Cartwright et al (eds), Reforming the French Law of Obligations: Comparative Reflections on the Avant-projet de réforme du droit des obligations et de la prescription (the ‘Avant-Projet Catala’) (Hart, 2009).

7 S Rowan. ‘The New French Law of Contract’ (2017) 66 International and Comparative Law Quarterly 805ff. On the new Art. 1128, see S Rowan, The New French Law of Contract (Oxford University Press, 2022) 85ff.

8 T Genicon, ‘L’avenir de la cause en droit français des contrats’ in G Albers et al (eds), Causa contractus (Mohr Siebeck, 2022) 721. The wording ‘contenu licite et certain’ was used in the Avant-Projet Terré : see F Terré (ed), Pour une réforme du droit des contrats (Dalloz, 2009).

9 See T Genicon, ‘L’avenir de la cause en droit français des contrats’, 1551–56; C Grimaldi, ‘Les maux de la cause ne sont pas qu’une affaire de mots’ (2015) 14 Recueil Dalloz 814ff; G Wicker ‘La suppression de la cause dans le projet d’ordonnance: la chose sans le mot’ (2015) 27 Recueil Dalloz 1557–68; M Latina, ‘Apprécier la réforme’ (2016) Revue des contrats 620; D Mazeaud, ‘Prime note sulla riforma del diritto dei contratti nell’ordinamento francese’ (2016) Rivista diritto civile 432–44.

10 G Gilmore, The Death of Contract (1974) with foreword by K. L. Collins (The Ohio State University Press, 1995), 61ff. In the Italian literature, see U Breccia, ‘Causa e consideration’ (2007) Rivista critica diritto privato 579. For a historical overview, see R Zimmerman, Roman Law, Contemporary Law, European Law: The Civilian Tradition Today (Oxford University Press, 2001) 80ff.

11 About the Projet de Code des obligations et des contrats franco-italien of 1927, see G Alpa and G Chiodi (eds), Il progetto italo francese delle obbligazioni (1927): Un modello di armonizzazione nell’epoca della ricodificazione (Giuffré, 2007); D Deroussin, ‘Le Projet de Code des obligations et des contrats franco-italien de 1927: chant du cygne de la culture juridique latine?’ (2007) https://journals.openedition.org/cliothemis/1795.

12 As the Civil Code of 1865 did: see fn 4.

13 J Ghestin, Cause de l’engagement et validité du contrat (Librairie générale de droit et de jurisprudence (LGDJ), 2006) 487ff.

14 E Roppo, ‘Causa concreta: una storia di successo? Dialogo (non reticente né compiacente) con la giurisprudenza di legittimità e di merito’ (2013) I Rivista diritto civile 957ff.

15 M Martino, ‘La causa in concreto nella giurisprudenza: recenti itinerari di un nuovo idolum fori’ (2013) Corriere Giuridico 1441ff.

16 A substantial critique of the conceptual and practical viability of the doctrine of cause, in the light of the French doctrinal debate, was raised by M Girolami, L’artificio della causa contractus (Cedam, 2012) and M Girolami, ‘Modernità e tradizione nel diritto dei contratti: i progetti di riforma del Code Napoléon nella prospettiva del giurista italiano’ (2012) I Rivista diritto civile 243–92. M Franzoni, in ‘La causa e l’interesse meritevole di tutela secondo l’ordinamento italiano’ (2017) Juscivile 410–21, raises doubts about the consistency of the current understanding of the cause as in concreto (see Section IV) with legal certainty needed by parties of international commercial contracts. By contrast, at the time of France’s discussions of the CC’s reforms, the majority of Italian literature endorsed the notion of cause: see, for example, C Scognamiglio, ‘La riforma del contratto in Francia: problemi e prospettive’ (2011) Contratti 2011, 128ff; CM Bianca, ‘Causa concreta del contratto e diritto effettivo’ (2014) Rivista diritto civile 251ff; R Senigaglia, ‘Per un’ermeneutica del concetto di causa’ (2016) Jus civile 507–32; GB Ferri, ‘Une cause qui ne dit pas son nom: Il problema della causa del contratto e la riforma del terzo libro del Code civil’ (2017) Rivista diritto commerciale 1ff and GB Ferri, ‘Causa del contratto (diritto francese)’ in Le parole del diritto. Scritti in onore di Carlo Castronovo (Giuffré, 2018) 177ff; E Navarretta, ‘La causa e la réforme du code civil francese’ (2018) Persona e mercato 31–37; C Tenella Sillani, ‘La riforma francese del diritto dei contratti e il destino della causa’ in G Conte et al (eds), Dialoghi con Guido Alpa: Un volume offerto in occasione del suo LXXI compleanno (Roma Tre Press, 2018) 537–49; M Giorgianni, L’evoluzione della causa del contratto nel codice civile francese (Joverne, 2018) 119–20.

17 G Giorgi, Teoria delle obbligazioni nel diritto moderno italiano III (Utet, 1925–30) 621.

18 M Planiol, Traité élémentaire de droit civil II (Gallica, 1931) 394ff; L Aynes, ‘La cause, inutile et dangereuse’ (2014) Dr. et patr. 40.

19 In recent years, see Girolami, L’artificio della causa contractus; Girolami, ‘Modernità e tradizione nel diritto dei contratti’. 16

20 For a critical examination of the polysemy of the cause, see G Gorla, Il contratto (1954) (Romatre Press, 2023) 262ff. For an analysis of the various understandings of the causa in Italian law, see E Navarretta, ‘Art. 1343—Causa illecita’ in E Gabrielli (ed), Commentario del codice civile: Dei contratti in generale (artt. 1321–1349) (Utet, 2011) 577 ff; AM Garofalo, ‘Itinerari della causa dal Code civil del 1804 al Codice civile del 1942’ in G Albers et al, Causa contractus 201ff. For an overview of the different meanings of the cause in French law, see Ghestin, Cause de l’engagement et validité du contrat, 6ff, C Larroumet, ‘De la cause de l’obligation à l’intérêt au contrat (A propos du projet de réforme du droit des contrats)’ (2008) Recueil Dalloz 2441ff.

21 A di Majo, ‘Causa del negozio giuridico’ (1988) Enciclopedia giuridica Treccani 1.

22 Franzoni, ‘La causa e l’interesse meritevole di tutela secondo l’ordinamento italiano’; A Nervi, ‘Ancora sulla causa del contratto: Un istituto da adoperare con cura’ (2022) Jus 73ff, 90; Roppo, ‘Causa concreta’, 986ff also criticises the hypertrophic use of the cause of the contract.

23 The decline in the international influence and attractiveness of French law was one of the main reasons underlying the reform, according to Rowan, ‘The New French Law of Contract’, 808–10.

24 Under Art. 3.1.2 PICC, ‘a contract is concluded, modified or terminated by the mere agreement of the parties, without any further requirement’. The comments under Art. 3.1.2 PICC emphasise that neither cause nor consideration is required (www.unidroit.org/instruments/commercial-contracts/unidroit-principles-2010/chapter-3-section-1/#1623694323415-30641944-9988).

25 See II.—1:101 DCFR (Meaning of ‘contract’ and ‘juridical act’ (1) A contract is an agreement which is intended to give rise to a binding legal relationship or to have some other legal effect. It is a bilateral or multilateral juridical act. (2) A juridical act is any statement or agreement, whether express or implied from conduct, which is intended to have legal effect as such. It may be unilateral, bilateral or multilateral) and Book I Chapter 7 (Grounds of invalidity). See also Art. 2:101 PECL: A contract is concluded if: (a) the parties intend to be legally bound, and (b) they reach a sufficient agreement without any further requirement. See, finally, Arts. 1ff Code Européen des Contrats—European Contract Code.

26 The distinction between subjective and objective understanding of cause is well-established in the French literature: see, for a concise analysis, Rowan, ‘The New French Law of Contract 817-818.

27 For a comprehensive overview of the case law on the matter, see Ghestin, Cause de l’engagement et validité du contrat, 174ff.

28 G Gilmore, The Death of Contract (1974), foreword KL Collins (Ohio State University Press, 1995) 85.

29 Civ 22 October 1996 93-17.255 (1996) Bulletin des arrêts des chambres civiles de la Cour de cassation IV, p 223. See C Larroumet’s comment, ‘Obligation essentielle et clause limitative de responsabilité’ (1997) Dalloz Chronique 145–46; Civ 19 July 2002 Bulletin des arrêts des chambres civiles de la Cour de cassation, p 129.

30 As to the Faurecia saga, see Comm. 13 February 2007 and Comm. 29 June 2010 www.legifrance.gouv.fr, where the Cour de Cassation stated: ‘seule est réputée non écrite la clause limitative de réparation qui contredit la portée de l’obligation essentielle souscrite par le débiteur’.

31 T Genicon, ‘Défense et illustration de la cause en droit des contrats: À propos du projet de réforme du droit des contrats, du régime général et la preuve des obligations’ (2015) Recueil Dalloz 1551–56.

32 T Genicon ‘‘Défense et illustration de la cause en droit des contrats’, 1564, makes reference to the ‘porosité de la théorie des vices du consentement et de celle de la cause’.

33 For a detailed analysis of the doctrines developed by French academics before the 2016 reform, see Ghestin, Cause de l’engagement et validité du contrat, 115ff.

34 H Capitant, De la cause des obligations (Dalloz, 1923) 247ff.

35 Civ 1re July 1997 www.legifrance.gouv.fr/juri/id/JURITEXT000007036579/.

36 For the identification of ‘unworthiness’ as illegality or immorality, see GB Ferri, Causa e tipo nella teoria del negozio giuridico (Giuffré, 1960) 406ff; for the identification of ‘unworthiness’ as economic futility, see F Gazzoni, ‘Atipicità del contratto, giuridicità del vincolo e funzionalizzazione degli interessi’ (1978) I Rivista diritto civile 52ff; F Galgano, Il negozio giuridico in L Mengoni (ed) Trattato di diritto civile e commerciale III (Giuffré, 1988) 85ff. For a contrasting interpretation, see A Guarneri, ‘Meritevolezza dell’interesse e utilità sociale del contratto’ (1994) Rivista diritto civile 799ff.

37 U Breccia, ‘Interessi non meritevoli di tutela’ in U Breccia, Immagini del diritto privato II 1 (Giappichelli, 2020) 407ff; AM Garofalo, ‘La causa del contratto fra meritevolezza degli interessi ed equilibrio dello scambio’ (2012) II Rivista diritto civile 573ff; G Lener, ‘La meritevolezza degli interessi nella più recente evoluzione giurisprudenziale’ (2020) Rivista diritto civile 615ff; F Piraino, ‘Meritevolezza degli interessi’ (2021) Enciclopedia del diritto. I Tematici, I, 667ff and F Piraino, ‘La causa del contratto come finalità individuale di rilevanza sociale’ (2023) Europa e diritto privato 699–774; M Sabbioneti, ‘La rivincita della meritevolezza: una fiaba giuridica della postmodernità’ (2022) Storia metodo cultura 247ff. As to case law, see Section VII.

38 Civ SS UU 24 September 2018 no 22437 (2020) II Giurisprudenza Commerciale 115.

39 U Breccia, ‘Causa’ in Breccia, Immagini del diritto privato 371ff.

40 E Betti, Teoria generale del negozio giuridico (Esi, 1994, reprint of 2nd ed) 170ff.

41 Ferri, Causa e tipo nella teoria del negozio giuridico 1ff. See also M Bessone, Adempimento e rischio contrattuale (Giuffré, 1969) 281, who emphasises the concrete function (‘funzione concreta’) of the contract. An even more radical criticism of the cause as the function of a contract is made by R Sacco and G De Nova, Il contratto (Utet, 2016) 781ff.

42 E Betti, Teoria generale del negozio giuridico, 181ff.

43 Ferri, Causa e tipo nella teoria del negozio giuridico 358.

44 The idea of the cause as actual purpose (‘causa concreta’) has been largely upheld by Italian writers since the 1980s (Di Majo, ‘Causa del negozio giuridico’, 9; Breccia, ‘Causa’, 333ff; E Navarretta, La causa e le prestazioni isolate (Giuffré, 2000); Roppo, ‘Causa concreta’, 957ff; Bianca, ‘Causa concreta del contratto e diritto effettivo’) and is reflected in the main contract law textbooks (see, for example, the first editions of the following: CM Bianca, Il contratto (Giuffré, 1984) 425; U Breccia, L Bigliazzi, GFD Busnelli, and U Natoli, Diritto civile 1 Fatti e atti giuridici (Utet, 1987); E Roppo Il contratto (Giuffré, 2001) 364).

45 Ghestin, Cause de l’engagement et validité du contrat, 74ff; J Rochfeld, Cause et type de contrat (LGDJ, 1999) 73ff. For the rejection of the dichotomy between objective and subjective cause, see J Rochfeld, Cause et type, 214ff.

46 This is a consolidated trend in the recent literature on ‘isolated attributions’ and expressio causae matters (which, by the way, go well beyond the purpose of this article): see, for example, Navarretta, La causa e le prestazioni isolate, 261ff and E Navarretta, ‘Le prestazioni isolate nel dibattito attuale: Dal pagamento traslativo all’atto di destinazione’ (2007) Rivista diritto civile 823ff; M Martino L’expressio causae (Giappichelli, 2011) 265ff.

47 On the interpretative function of the cause, see Rochfeld, Cause et type de contrat, 223ff. Her thesis is further discussed by Ghestin, Cause de l’engagement et validité du contrat, 141ff.

48 Civ 12 November 2009, no 23941. Further examples of the interpretative function of the doctrine of cause are mentioned in Section VIII of this article.

49 The dominant conceptual tool is that of ‘parties’ intention’: as to Italian law, see Roppo, Il contratto, 11ff; as to French law, see D Perrouin-Verbe, ‘Causa and the Requirements for Valid Contracts’ in Albers et al, Causa contractus, 373–77; S Fulli-Lemaire, ‘Le rôle passé de la cause au stade de la formation du contrat’ in Albers et al, Causa contractus, 410. However, this is a tendentious statement as the courts sometimes do use the cause as an argument to declare the unenforceability of agreements not accompanied by a serious intention to be legally bound, as emphasised by Fulli- Lemaire, ibid. In Italy, see Civ 15 June 1999, no 5917 (2000) Giustizia civile 135 with comment by M Balestrieri ‘La preordinata volontà di non pagare il corrispettivo come causa di nullità della compravendita’ (concerning a sale contract signed by the buyer intentionally planning not to pay anything and declared void for lack of cause). According to a minority opinion, non-binding contracts would fall under Art. 1322 para. 2 It. CC as ‘unworthy of legal protection’ (F Gazzoni, ‘Atipicità del contratto, giuridicità del vincolo e funzionalizzazione degli interessi’ (1978) I Rivista diritto civile 52ff).

50 For a historical overview, see E Cortese, ‘Causa (diritto intermedio)’ (1960) VI Enciclopedia diritto 544ff. In seeking a common root between causa and consideration, see B Häcker, ‘Causa und consideration: Ein historischer Dialog’ in Albers et al, Causa contractus, 324f.

51 In the Italian literature, clearly, U Breccia, ‘Causa’, 371ff.

52 The use of cause to review immoral or illegal contracts is beyond the scope of this article, as it would require further investigation focusing on the comparison between the new Art. 1162 CC (‘Le contrat ne peut déroger à l’ordre public ni par ses stipulations, ni par son but, que ce dernier ait été connu ou non par toutes les parties’) and Art. 1343 It. CC, which states that the cause is unlawful if it is contrary to mandatory rules, public order, or morality.

53 PG Monateri, ‘L’accordo nudo’ in Scintillae iuris. Studi in memoria di G. Gorla III (Milano, 1994) 1967ff.

54 It is worth mentioning that Art. 1132 of the old Code Napoléon stated that ‘la convention n’est pas mois valable, quoique la cause n’en soit pas exprimé’. On the role of the cause as a requirement of a valid contract, see, in general, J Ghestin, G Loiseau, and Y-M Serinet, La formation du contrat: l’objet et la cause, les nullités (LGDJ, 2013); about the promise to pay an inexistent obligation, see Ghestin, Cause de l’engagement et validité du contrat, 453ff; for some concise historical information on the expressio causae, see AM Garofalo, ‘La causa dal Code civil al codice civile’ in G Albers et al, Causa contractus, 210–13.

55 Genicon, ‘L’avenir de la cause en droit français des contrats’.

56 Ghestin, Cause de l’engagement et validité du contrat, 165ff.

57 Comm. 22 March 2016 no 14-14.14.218. The judgment is interesting in stating that the nullity is relative when aimed at protecting the private interests of the other party rather than absolute when based on the absence of an essential element of the contract.

58 Civ 3 July 1996 (1997) Dalloz 500.

59 Comm. 17 May 2017 15-15.746.

60 Ghestin, Cause de l’engagement et validité du contrat, 310ff.

61 Civ 20 November 1992, no 12401 (1993) I Foro italiano 1506. For critical remarks, see L Bozzi, ‘Note preliminari sull’ammissibilità del trasferimento astratto’ (1995) I Rivista del diritto commerciale 199–232.

62 Court of Appeal Milan 5 February 1997 (1998) I(1) Giurisprudenza italiana 488, witth comment by F Pernazza, ‘Il corrispettivo nel patto di opzione tra causa e consideration’.

63 Civ 21 October 2005, no 20398 (2007) Giurisprudenza italiana 867, with comment by S Sorrentino, ‘Dividend washing, causa “concreta” del contratto, contratti collegati e nullità per mancanza di causa’.

64 Civ 9 October 2003, no 15064; Civ 9 October 1991, no 10612 (1991) I Giustizia civile 2895, with comment by F Gazzoni, ‘Babbo Natale e l’obbligo di dare’; Civ 21 December 1987, no 9500 (1988) Corriere giuridico 144, with comment by V Mariconda, ‘Articolo 1333 c.c. e trasferimenti immobiliari’.

65 Tribunal Bologna 1 October 2003 (2003) Vita notarile 1297, with comment by L Santoro, ‘I traguardi della giurisprudenza italiana in materia di trusts’.

66 See Civ 15 May 2019, no 12884 (2020) Corriere giuridico 773, with comment by GB Barillà, ‘I presupposti per l’esercizio dell’exceptio doli nell’escussione delle garanzie bancarie autonome: obblighi del garante e diritti del beneficiario’.

67 Civ 4 April 2024, no 10786.

68 A symbolic or ridiculous price might reveal the absence of cause and lead to the nullity of a contract. This doctrine is well established and is based on the lack of one of the essential elements of the sales contract according to Art. 1470 CC (see, for example, Civ 28 August 1993 no 9144). The nullity applies even if the parties agreed that the price should not be paid (Civ 12 June 2024 no 16422). Conversely, a price significantly lower than the value of the asset raises the question of the qualification of the contract as donation or negotium mixtum cum donatione (see, for example, Civ 9 February 2011 no 3175).

69 Civ 21 December 2023, no 35685.

70 Civ 10 October 2023, no 28329 (2024) Giurisprudenza italiana 2070, with comment by G Biancardi, ‘L’alea dei contratti vitalizi di assistenza alle persone anziane’; Civ 28 April 2008, no 10798; Civ 27 October 2017, no 25624 (2018) Famiglia e diritto 437, with comment by N Cevolani, ‘La questione dell’alea nel vitalizio assistenziale’; Civ. 25 March 2013, no 7479; Civ 11 March 2016, no 4825; Civ. 22 April 2016, no 8209; Civ. 29 July 2016, no 15904.

71 Civ. 9 January 1999, no 117 (1999) Giurisprudenza italiana 1360; Civ. 19 October 1998, no 10332 (1999) Giurisprudenza italiana 2264.

72 See Section VI.

73 Civ 14 January 1946, no 36 (1946) I Foro italiano 191ff.

74 Civ 22 July 1987, no 6492 (1987) Massimario Annotato della Cassazione (Giustizia Civile) 1875.

75 Civ 2 April 2009, no 8038 (2009) I Nuova giurisprudenza civile commentata 998, with comment by Salvadori. The Grand Chamber of the Supreme Court civ 6 March 2015, no 4628 (2015) Responsabilità Civile e Previdenza 619 subsequently made clear that the second preliminary contract is valid only if the parties’ specific interest in a progressive formation of the contract can be detected (see U Stefini, ‘Il “preliminare di preliminare” e le intese precontrattuali nella contrattazione immobiliare’ (2015) Rivista diritto civile 1230ff; see critically R De Matteis, ‘Accordi preliminari e modularità del vincolo a contrarre’ (2015) II Nuova giurisprudenza civile commentata 391). On the same line, see Corte di Cassazione civ 28 October 2020, no 23736 (2021) II Rivista del Notariato 122.

76 Civ 8 May 2006, no 10490 (2006) Corriere giuridico 1718, with comment by F Rolfi, ‘La causa come “funzione economico sociale”: tramonto di un idolum tribus?’.

77 Tribunal Nocera Inferiore 2 March 1995 (1996) I Giustizia civile 3047, with comment by M Psaro, ‘In tema di fideiussione del socio illimitatamente responsabile’.

78 Civ 9 February 2018, no 393.

79 See Civ (Grand Chamber) 6 March 2015, no 4628; Civ 28 October 2020, no 23736.

80 Civ 24 February 2000, no 2108; Civ 8 August 1995, no 8689; Civ 11 August 1990, no 8200.

81 See Sections VI and VII.

82 J Gordley, ‘Inequality in Exchange’ (1981) 69 California Law Review 1587–656.

83 See Sections VI and VII.

84 See Civ 22 October 1996 93-17.255, Comm. 13 February 2007, Comm. 29 June 2010 cited in full in fn 29 and 30.

85 Comm 27 March 2007 05-20.696 and 9 June 2009 08-11.420.

86 Civ SSUU 24 September 2018, no 22437. This doctrine is well-established and followed by subsequent judgments: see, for instance, Civ 12 March 2024, no 6490, www.dejure.it; Civ 25 February 2021, no 5259 (2021) I Foro italiano 1669; Civ 13 May 2020, no 8894 (2021) Corriere giuridico 195, with comment by M D’Auria, ‘Ancora sulle claims made: profili critici’.

87 F Della Negra, Mifid and Private Law: Enforcing EU Conduct of Business Rules (Bloomsbury, 2019) 227ff.

88 Civ 3 May 2017, no 10708 (2018) II Rivista del Notariato 1062; Civ 10 November 2015, no 22950.

89 Civ 15 February 2016, no 2900 (2016) Nuova giurisprudenza civile commentata  852, with comment by G Versaci, ‘Giudizio di meritevolezza e violazione di regole di condotta in materia di intermediazione finanziaria’.

90 Civ SSUU 12 May 2020, no 8770 (2020) Responsabilità Civile e Previdenza 1515. On the interest rate swap saga, see AM Garofalo, Aleatorietà e causa nella rendita vitalizia e nell’interest rate swap (Esi, 2018) 291ff. In particular, the method of calculation of ‘mark to market’ profits have to be disclosed (see, for instance, Tribunal Reggio Emilia 23 February 2023, no 227 and Court of Appeal of Milan 4 April 2023, no 1148, both in www.dejure.it).

91 Civ SSUU 23 February 2023, no 5657 (2023) Repertorio Foro Italiano, Locazione finanziaria, no 19.

92 As to France, see Della Negra, Mifid and Private Law, 156–58.

93 For a comparative analysis of hardship in English, German, and international contract law and in France before the 2016 reform, see H Rössler, ‘Hardship in German Codified Private Law—In Comparative Perspective to English, French and International Contract Law’ (2007) 15 European Review of Private Law 483ff. After the 2016 reform, see P Stoffel-Munk, ‘L’imprévision et la réforme des effets du contrat’ (2016) Revue des contrats 30ff.

94 Civ 15 May 2024, no 13435 (2024) Guida al diritto 23, concerning a change in the urban plan involving land promised for sale.

95 See Section VII.

96 The Italian literature on the matter is abundant: see, for instance, C Camardi, Economie individuali e connessione contrattuale: Saggio sulla presupposizione (Giuffré, 1997); A Nicolussi, ‘Presupposizione e risoluzione (2001) Europa e diritto privato 843; E Navarretta, ‘Le ragioni della causa e il problema: L’evoluzione storica e le prospettive nel diritto europeo dei contratti’ (2003) Rivista del diritto commerciale 988; E Navarretta La causa e le prestazioni isolate, 321ff.

97 Civ 20 December 2007, no 26958 (2008) I Nuova giurisprudenza civile commentata 531; Civ 24 July 2007, no 16315 (2008) Danno e resp. 845, with comment by Delli Priscoli.

98 Civ 10 July 2018, no 18047 (2018) Diritto e Processo 320–58, with comment by SP Cerri, ‘Irrealizzabilità del contratto di pacchetto turistico e causa in concreto’; Corte di Cassazione civ 29 March 2019, no 8766 (2019) Corriere Giuridico 717; Civ 18 January 2023, no 1417 (2023) Pactum Online, 29 June 2023, with comment by A Cioni, ‘L’inadempimento delle obbligazioni legate ai pacchetti turistici: un passo falso per la Cassazione’.

99 See Sections I and IV–IX.

100 ‘La cause s’entend des mobiles qui ont déterminé chaque partie à conclure le contrat, dès lors qu’ils sont connus ou auraient dû l’être de l’autre partie.’ It is to be emphasised that the new code expressly provides for the nullité relative (relative nullity) as a remedy for the absence of cause.

101 Navarretta, La causa e le prestazioni isolate, 240.

102 See Section IX.

103 See Genicon, ‘L’avenir de la cause en droit français des contrats’, 715–31.

104 E Navarretta, ‘Causa e giustizia contrattuale a confronto: Prospettive di riforma’ (2006) Rivista diritto civile 411ff; E Navarretta, ‘Europa cum causa’ in Diritto comunitario e sistemi nazionali: pluralità delle fonti e unitarietà degli ordinamenti (Esi, 2010) 328ff.

105 See s. 313 BGB.

106 Critically, see FP Patti, ‘Causa and Unexpected Circumstances’ in G Albers et al, Causa contractus, 517ff.

107 In the Italian literature on the matter, see U Breccia, ‘Morte e resurrezione della causa’ in Breccia, Immagini del diritto privato, 635ff; Navarretta ‘Le ragioni della causa e il problema, 979ff.

108 Genicon, ‘L’avenir de la cause en droit français des contrats’, 718.

109 See, for example, OO Cherednychenko, ‘Islands and the Ocean: Three Models of the Relationship between EU Market Regulation and National Private Law’ (2021) 84 Modern Law Review 1294–329.

110 The choice made by the Belgian legislator (see fn 100) can be seen as a feasible paradigm.