Legitimate Expectation and Good Faith in Public Contracts

In this paper I mean to examine the dealing of public powers in public contracts, in the light of the contractual asymmetry profiles that characterise commercial transactions between private subjects and public authorities. Private parties and public powers are linked by an unequal contractual relation; indeed, the (formal and substantive) awe of enterprise, in the system of public contracts, is sufficiently clear if we consider (for example) the fact that a private party, within the terms of law, is bound to its tender without being able to withdraw the contractual proposal; such private party is also unilaterally bound to the contract entered into, until the contract’s approval (art. 32, Legislative Decree no. 50/2016, Codice degli Appalti). In this reasoning, the public evidence procedure cannot be reconstructed in terms of negotiating parity (i.e., between equal subjects), being mainly managed by public powers or jure imperii. For this reason, it is required, to investigate which tools may guarantee the company in case of "awe" and, at the same time, the proper functioning of the internal market.