Precontractual responsibility: may exists even in case of a valid contract conclusion.

A recent ruling from the Supreme Court of Cassation (No. 24795, 8 October 2008) seems to have extended the boundaries of precontractual responsibility. The SC has expanded address introducing the jurisprudential principle that the rule laid down by 1337 cc - under which the parties in the conduct of negotiations, must behave according to good faith - does not refer to the case of unjustified rupture of negotiations, but would value the general clause, whose contents can not be determined accurately , implying that during the negotiations of the duty to negotiate in good faith and refrain from behavior and malicious or reluctant to provide any other relevant data, known or knowable with the utmost care, for the purpose of concluding the contract. And based on this principle follows that the failure to act in good faith in negotiations and the formation of the contract assumes significance not only in the event of unjustified rupture of negotiations and, therefore, no conclusion of the contract or to conclude an invalid or ineffective contract, but even if the contract is valid, however, results prejudicial for the part victim of other people's incorrect behavior. The case dealt by the Judge of Legitimacy relates to a pathological situation on a contractual relationship between two companies, because one of those sued in the Court of Milan a leasing company, which had failed to inform the other party about an already occurred suspension of tax benefits consisting of a tax credit and, indeed, had given assurances about the possibility of using these facilities, thereby inducing the same counterparty to enter into a leasing contract. The defendant was challenging the opponents claim, arguing, in particular, the existence of a pre-contractual responsibility even in presence of a regular and completed contract. Rejected at first instance, the application of the actress, was then upheld by the Court of Appeal of Milan, which condemned the leasing company to pay damages commensurate with the costs incurred by the appellant during the negotiations and the lack of tax credit . Against that ruling, the leasing company appealed Cassazione, claiming the incorrect application of Articles 1337 and 1338 cc, since the contract was concluded and the denial of the contributions expected from the respondent had not minimally affected the validity and effectiveness of the lease, also complaining a false application of the Article 1227 cc, as the alleged damage suffered by the respondent was quantified by the Court of Appeals in an amount equivalent to the expected benefit from the non-contribution. Applying the above principle, the SC upheld the ruling of the judges responsible for what constituted a breach of the canon of good faith, under Art. 1337 and 1338 cc, the behavior of a leasing company that had failed to inform the other party about the already occurred suspension of tax relief, under Law No 341, 1995 and, indeed, had given assurances about the possibility of making use of such facilities, for which the other party that had led to the conclusion of the leasing contract. The Court, therefore, has noted that the obligation to act in good faith in negotiations and the formation of the contract assumes significance not only in the event of unjustified rupture of negotiations and, therefore, no conclusion of the contract or to conclude an invalid or ineffective contract, but even when the contract is valid, however, is prejudicial for the part victim of other people's incorrect behavior. Therefore, it is irrelevant that the contract was made later, because the unlawful conduct of others has already occurred at the stage of negotiations. While, regarding the quantum of damages, the Judge upheld the quantification of the damage done by the Territorial Court, stating that regarding the precontractual liability, damages must be comparable to the minor advantage or to the greatest economic burden determined by conduct of the other party in breach of the duty of good faith, unless proved the existence of additional damage that is linked to such behavior by a consequential and direct relationship.