The Court of Appeals of Milan,\nwith sentence 908 of 2 September 2019, addressed the issue of the validity of\nthe non-competition agreement subject to the right of option under Article 1331\nof the Italian Civil Code for the employer. <\/p>\n\n\n\n
Facts of the case<\/strong><\/strong><\/p>\n\n\n\n The case in question originates\nfrom the appeal filed by an employee who, after resigning, had asked the Court\nof Monza to ascertain and declare the nullity and \/ or ineffectiveness and \/ or\ninvalidity of the clause relating to the right of option attached to the\nnon-competition agreement asking, at the same time, the employer company to be\nordered to pay the compensation anticipated for that agreement.<\/p>\n\n\n\n The employee’s request was\nbased on the assumption that the pact, although operating for the period\nfollowing the end of the employment relationship, would be finalized with the\nrelative agreement, thus preventing him from planning his employment future and\nconsequently constricting his freedom. <\/p>\n\n\n\n In rejecting the action brought\nby the employee, the Court stated that it was obvious in this case that the\ncompany had not exercised its right of option and, therefore, that no\nnon-competition agreement had been concluded between the parties. Consequently,\nin the view of the Court, no right to the consideration provided for in the\nnon-competition agreement could be invoked by the employee. This is because\n“this right has never arisen<\/em>\n(Ed. had never arisen), since no\nagreement on the point has been reached because of the lack of exercise of the\nright of option by the employer<\/em>“. <\/p>\n\n\n\n Moreover, the Court – expressly\nrecalling a previous case law (see judgement 13352\/2014) – ruled out any\nprofile of nullity of the clause, pointing out, however, that it had been the\nparties themselves, in their full negotiating autonomy, “to regulate their own interests<\/em>“.<\/p>\n\n\n\n The worker thus appealed\nagainst the decision of the Court.<\/p>\n\n\n\n The decision of the Court of Appeals of Milan<\/strong><\/strong><\/p>\n\n\n\n In the opinion of the Milan\nCourt of Appeals, the failure of<\/strong> the\nemployer to exercise its right of option<\/strong>\nmakes it possible to state that no\nagreement had been reached<\/strong> between the parties and that, as a result, no right to remuneration had arisen<\/strong> for\nthe employee. In fact, it should be considered that in the typical structure\nprovided for by the law, “the party\nbound by the option, i.e. by their own statement, is not bound by the final\ncontractual performance until the other party accepts it, thus constituting the\nfinal contractual relationship<\/em>“. <\/p>\n\n\n\n The District Court then\nremarked that the institution of the option under Article 1331 of the Italian\nCivil Code is part of a more complex case of progressive formation of\ncontracts, initially consisting of an agreement concerning the irrevocability\nof the proposal of the promisor, and, subsequently, of the (possible)\nacceptance of the promisor, who, settling with the previous proposal, completes\nthe new legal transaction. <\/p>\n\n\n\n According to the Court of\nAppeals, the perfection scheme is therefore not that of the\nproposal-acceptance, but that of the preparatory\noption contract<\/strong>, followed by the exercise of that right, by means of a\nunilateral declaration of acceptance within a period fixed in the contract\nitself or, failing that, by the judge. And, therefore, once this period has\nexpired, the option is no longer valid, since it is a period of validity of a\ncontract and not of irrevocability of the proposal.<\/p>\n\n\n\n In essence, the right of option\nis a potestative right, since it corresponds, on the passive side, to a\nposition of subjection, given that, at the sole initiative of the option\nholder, the grantor may be subject to the conclusion of the final contract. <\/p>\n\n\n\n Last but not least, the Court\nof Appeals pointed out that there had been no constriction to the worker’s\ncontractual freedom. This was because he himself had voluntarily resigned by\naccepting a different job offer and had not shown that he had been limited by\nthe company’s failure to notify him of the exercise of his option. <\/p>\n\n\n\n In light of the above, the\nCourt of Appeals rejected the employee’s appeal against the judgement of first\ninstance, not finding any violation of the law inherent to the right of option\nunder Article 1331 of the Italian Civil Code. <\/p>\n","protected":false},"excerpt":{"rendered":" The Court of Appeals of Milan, with sentence 908 of 2 September 2019, addressed the issue of the validity of the non-competition agreement subject to the right of option under Article 1331 of the Italian Civil Code for the employer. Facts of the case The case in question originates from the appeal filed by an […]<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[167,177,190],"tags":[977,978],"class_list":{"0":"post-24234","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"hentry","6":"category-case-law","7":"category-insights","9":"tag-corte-dappello-milano-en","10":"tag-patto-di-non-concorrenza-en"},"acf":[],"yoast_head":"\n