Considerazioni critiche sulla clausola «take or pay». Paradossi di una identità dimenticata

It is not unusual that a clause used in a certain legal system is discussed elsewhere in similar terms. Nevertheless, it should be put in different perspective in several cases. The study focuses about the "take-or-pay" clauses, which are mainly found in international gas supply contracts. A “take-or-pay” provision obliges the purchaser to pay for a specific volume of gas regardless of whether the gas is taken or not. In the Common Law experience, the Courts consider whether a take or pay clause can amount to an unenforceable penalty. So, they hold that the clause does not violate the rules against penalties if the clause: (1) is commercially justifiable; (2) does not amount to oppression; (3) is negotiated and freely entered into between parties of equal bargaining power; and (4) does not have the predominant purpose of deterring a breach of contract. Although the scholars discuss similar issues under the Italian law, due consideration should be given to the peculiarities of the Italian legal system.