Non-restitution clauses versus non-indemnity clauses perspectives of dogmatic delimitation based on a functional analysis of the effects of the contractual resolution

Abstract

The central aim of this article is to investigate the dogmatic autonomy of contractual clauses that exclude or limit the obligation to restitute (synthetically referred to as “nonrestitution clauses”) in relation to contractual
clauses that exclude or limit the obligation to indemnify (“non-indemnification clauses”). It is based on the methodological premise regarding the functional analysis of obligations in private law, to enable the  recognition of the general legalobligation regimes relative to the functions performed by each obligation (contractual, compensatory and restitutionary functions). The so-called “contractual resolution effects” are then dealt with in order to investigate the possibility of qualifying the so-called “restitutionary effect” as a hypothesis of unjust enrichment, specifically in the kind of absence of cause. Also with regard to the legal effects of the contractual resolution, the distinction is drawn between the obligations of
restitution of the equivalent, compensation for damages and enforcement by the equivalent. From the considerations then developed, some perspectives of functional differentiation between “non-restitution clauses” and “non-indemnification clauses” are presented, with particular focus on the qualification of decay clauses.