I contratti di godimento in funzione della successiva alienazione

Abstract

The PhD thesis deals with the study of “contratti di godimento in funzione della successiva alienazione” introduced by Article 23 of Law Decree no. 133 of 12 September 2014 (Decreto Sblocca Italia), converted in Law no. 164/2014. This type of negotiation was already widespread through models known as rent-to-buy, buy-to-rent and help-to-buy, borrowed from the Anglo-American legal experience, characterized by pricing dilution mechanisms, in order to solve home loans interruptions, caused by the recent economic crisis. It is appropriate to highlight that the use of the classic model of sale, regulated by Article 1460 and following of Civil Code, gives the step to the ever-expanding use of proclaimed forms of sale, characterized by a progressive realization of the translational affair. The transaction deduced in rent to buy - now " contratti di godimento in funzione della successiva alienazione " – consists, in fact, of a first necessary step with effect of oblige, which creates a position of enjoyment for the renter and a second stage with “real effects”, in which property transfer is carried out, which is only potential, since the legal rule does not provide for mutual agreement between the parties to conclude the act of sale, but gives to the renter the right to purchase. The paper also takes into account tax profiles, not regulated by law, but indicated by an Explanatory Circular issued by Revenue Agency, which sets out the rules governing the tax regime of the case. Work’s objective is to identify contract’s “essential legal effects”, which allow us to first draw the boundaries with the many similar figures, including “pre-contract with anticipate execution”, “lease convertible in sale”, “collegamento negoziale” between lease and pre-contract or option, in order to identify the “proprium” of the figure introduced by the Decree “Sblocca Italia”. The study of this contract goes through the identification of the cause, considering the method observed - different from the theory of “sussunzione” - which presupposes a unified process of interpretation and qualification aimed at identifying contract’s “essential legal effects”, which define the “minima unità effettuale”. After the identification of the “essential legal effects” along with the individual interests put forward by the parties, it is possible to trace the most appropriate discipline to fit the concrete case, which is to be sought within the whole system, disagreeing with classification methods that would lead to stiffening of the negotiating cases. [edited by Author]