Positive contractual interest and negative contractual interest inflows of distinction in the context of termination of the contract due to breach

Abstract

The central scope of the present study is to investigate the inflows of the distinction between positive contractual interest and negative contractual interest on the delimitation of indemnity in the context of termination of the contract for culpable default. To this end, it is investigated, initially, the meaning that the word interest assumes in the dogmatic of the civil liability. From understanding the meaning of contractual interest, the study seeks to examine the meaning and scope of the distinction between its two modalities – positive and negative interest –, with particular focus on the controversy regarding the definition of the modality of contractual interest to be to guide the indemnity within the scope of the contractual resolution for breach. Other relevant controversies are also examined, notably those concerning the possibility or not of cumulation between the positive and negative interests, the possibility or not of the victim's free choice between one and the other species of contractual interest and, finally, the limitation or not of the negative interest by the positive interest.