Il ruolo della prestazione caratteristica dalla Convenzione di Roma al regolamento “Roma I” sulla legge applicabile ai contratti

The characteristic performance, whose origin is in the Swiss doctrine and jurisprudence, was accepted in the European private international law by the Rome Convention of 1980 on the law applicable to contractual obligations. Pursuant to Article 4 of this Convention, to the extent that the law applicable to the contract has not been chosen by the parties, the contract shall be governed by the law of the country with which it is most closely connected. In order to ascertain this country, paragraph 2 of Article 4 declares that it shall be presumed that the contract is most closely connected with the country where the party who is to effect the characteristic performance of the contract has, at the time of the conclusion of the contract, his habitual residence. However, this presumption shall be disregarded if it appears that the contract is more closely connected with another country. In the 1980 Rome Convention, according to the Author, the characteristic performance is only a presumption directed to let the real conflict rule work, namely the “proximity” rule. On the contrary, the “Rome I” Regulation of 2008 mainly aims at securing legal certainty as regards the law applicable to contracts. Therefore that law shall be determined in accordance with the rules specified in an automatic, strict way by the new Article 4, paragraph 1, for eight types of contracts. Only if the contract cannot be categorized in one of these types, or if its elements fall within more than one of the specified types, it shall be governed by the law of the country where the party required to effect the characteristic performance has his habitual residence. In the present Author’s view, in the cases envisaged by this provision of the Rome I Regulation it will often be difficult to determine the characteristic performance. As a consequence, it will be necessary to have recourse to the law of the country with which it is most closely connected, which has to be applied where it is impossible to determine the characteristic performance of the contract.