Why Deviate from the Civil Code in the Execution of Public Contracts

Abstract

This paper briefly reviews the regulations governing the execution of public contracts as set forth in Legislative Decree No. 36 of March 31, 2023, aiming to identify the underlying reasons for the main exceptions to the provisions of the Civil Code. Upon identifying these reasons, the Author observes that, in certain cases, the exceptional rules remain within the realm of private law, constituting at most a specialized form of private law. However, in other instances, with regard to specific legal institutions, these exceptions entail the incursion of administrative powers into the execution of public contracts—a domain generally governed by private law. The Author proposes several hypotheses concerning the rationale behind the use of administrative authority and, finally, considers—while ultimately distancing himself from it—a proposal to reinterpret the execution of public contracts entirely through a public law perspective.