Prestazioni immorali e soluti retentio: la crisi dell’istituto e l’evoluzione della nozione di buon costume ex art. 2035 c.c.

This article examines several contentious issues surrounding Article 2035 of the Italian Civil Code, which governs the non-recoverability of performances rendered under immoral contracts. Since the enactment of the Civil Code, the theoretical foundation of this rule – rooted in Roman law – has been consistently viewed as uncertain by Italian legal scholars, particularly in light of the potential inequities arising from its practical implementation. The inherent crisis in this provision, as evidenced by the infrequent judicial application of Article 2035 in past decades, appears largely attributable to the inexorable process of juridification of the concept of public decency (which has been gradually subsumed, at least in part, into the broader notion of public order). This phenomenon is observable not only within the domestic legal system but also across other jurisdictions, both those of continental derivation and those within the Common Law tradition. However, amid this apparent decline of the institution, a groundbreaking decision by the Italian Court of Cassation has recently emerged, offering a profoundly innovative interpretation of public decency that has the potential to revitalize Article 2035 and pave the way for applications previously deemed unimaginable.