Tre modelli di rinegoziazione. Rinegoziazione spontanea, obbligo di rinegoziare e incentivi alla rinegoziazione

The spread of the pandemic and its devastating impact on the economy has brought up the issue of the recognition of a duty to renegotiate in contractual relationships, with particular reference to those contracts affected by the consequences of Covid-19. The purpose of this paper is to examine the legal basis for such a duty in our legal system and to analyse which are the most effective instruments to achieve renegotiation. The paper maintains that the recognition of a duty to renegotiate is closely dependent on the model of contract prevailing in a given system – adversarial, relational or solidarity-based –, since each model in turn affects the notion of good faith. In terms of remedies, the judicial adjustment of the contract is not always the most appropriate instrument against changed circumstances and solutions are proposed to promote renegotiation between the parties, through a system of rules based on good faith, including, in particular, the recognition of a duty to justify one’s contractual choices