La forma dell'obbligo di trasferimento nel pactum fiduciae

This paper addresses the issue of the formal requirements of the transfer obligation in the pactum fiduciae, presenting the reasons for rejecting the current stance of the supreme Court and advocating for the necessity of a written form ad substantiam. This conclusion is supported by two distinct lines of argumentation. Firstly, the direct applicability of Article 1351 of the italian civil code is asserted, on the basis that agreements binding the parties to conclude a subsequent contract, even when embedded within a broader contractual framework, qualify as preliminary contracts. Secondly, the same conclusion is reached by also endorsing a possible analogical application of the aforementioned provision. Indeed, both the formal requirement for transactions involving real estate and the principle of freedom of form embody a unified legal principle aimed at reconciling conflicting interests. Consequently, by rejecting the exceptional nature attributed to article 1351, article 14 of the preliminary provisions is inapplicable.