Spedizioniere – Trasporto per mare – Esatto adempimento – Estremi – Fattispecie – Facoltà del mandante di esercitare i diritti di credito derivanti dalla esecuzione del mandato – Carattere eccezionale – Estensibilità all'esercizio di diritti di natura diversa – Esclusione.

Saturday, 7 February, 2009 | By Avvocato Luca Raffo | Categoria: Cassazione, Giurisprudenza, Trasporto marittimo

Corte di Cassazione Civile

Sez. III, 21 gennaio 2005, n. 1312

Lo spedizioniere che si obbliga a concludere un contratto di trasporto per via di mare di un particolare tipo di merce (nella specie due caldaie saldate su carrelli fissati sulla coperta della nave) deve adempiere al contratto non a mezzo di qualunque nave, ma deve verificarne l’idoneità a quel determinato carico.

La disposizione di cui al comma secondo, prima parte, dell’art. 1705 cod. civ. introduce – per ragioni di tutela dell’interesse del mandante – un’eccezione al fondamentale principio, enunciato nel comma primo, secondo cui il mandatario che agisce in nome proprio acquista i diritti ed assume gli obblighi derivanti dagli atti compiuti con i terzi, anche se questi hanno avuto conoscenza del mandato. Detta disposizione, per il suo carattere eccezionale e in forza del chiaro tenore dell’espressione “diritti di credito derivanti dall’esercizio del mandato”, è limitata alla possibilità dell’esercizio, da parte del mandante, dei diritti di credito derivanti al mandatario dalla esecuzione del mandato, con esclusione della possibilità di esperire contro il terzo le azioni contrattuali e, in particolare, quelle di risoluzione per inadempimento e di risarcimento dei danni. Né tale interpretazione appare viziata da incostituzionalità sotto il profilo dell’irragionevolezza, in quanto la previsione dell’art. 1705 cod. civ. è diretta ad ampliare la tutela del mandante, attribuendogli anche una legittimazione diretta nei confronti del terzo-contraente, ferma restando la possibilità di agire nei confronti del mandatario, tenuto ad eseguire il mandato con la diligenza del buon padre di famiglia.

(Fattispecie relativa a risarcimento danni da trasporto marittimo).

Art. 1705. Mandato senza rappresentanza

Il mandatario che agisce in proprio nome acquista i diritti e assume gli obblighi derivanti dagli atti compiuti con i terzi, anche se questi hanno avuto conoscenza del mandato.

I terzi non hanno alcun rapporto con il mandante. Tuttavia il mandante, sostituendosi al mandatario, può esercitare i diritti di credito derivanti dall’esecuzione del mandato, salvo che ciò possa pregiudicare i diritti attribuiti al mandatario dalle disposizioni degli articoli che seguono.

Tratto da www.fog.it

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  1. Questo racconto/articolo e8 cootevmnme nella sua lucidite0 impietosa, ma e8 soprattutto bellissimo perche9 ti fa capire quanto la demoniocrazia sia una trappola mortale .. insidiosa e sfuggente, come satana stesso (!) perche9 non sai nemmeno con chi prendertela visto che teoricamente sei TU che scegli i tuoi rappresentanti.E quindi il finale logico: sono IO che sono sbagliato, sono IO che non valgo nulla, perche9 sono incapace di gestirmi in un mondo che e8 “perfetto” perche9 mi hanno sempre detto che la democrazia e8 la perfezione .. La prova? La vogliono tutti!

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