Osservazioni critiche sull’orientamento della Cassazione che nega il controllo giudiziale della caparra confirmatoria

This article offers a critical reassessment of the case law of the Corte di cassazione denying judicial reduction of a manifestly excessive caparra confirmatoria. The prevailing view of the judiciary rejects the application of Article 1384 of the Italian Civil Code(codice civile) on the basis of the structural features of the institution and of the inherent quantitative limit represented by the principal obligation. The article questions the persuasiveness of this reasoning, arguing that the structural configuration of the caparra confirmatoria does not, as such, exclude the possibility of a manifest disproportion between the agreed sum and the loss reasonably foreseeable in the event of non-performance. Adopting a functional analysis, the article argues that the caparra confirmatoria raises concerns analogous to those underlying judicial control of the clausola penale.On this basis, it revisits both the doctrinal arguments in favour of the analogical application of Article 1384 c.c. and the solutions developed by lower courts, which have addressed disproportionate arrangements either through recharacterisation of the clause or through partial invalidity of the agreement. The article ultimately supports an interpretative approach centred on the economic function of the institution and on the substantive balance of the contractual relationship, with a view to preventing outcomes that produce unjustified and unreasonable distortions in the allocation of contractual risk.