Scientific Activity

The main research topic that has characterised Caputo Nassetti’s scientific activity is the civil law analysis of new financial contracts.

The first volume was born in 1996 out of a decade of elaborate legal meditations on new contracts and constant contact with international operational reality. This contact has made it possible to understand the aims and requirements that the various contractual figures aim to satisfy, as well as the nuances of the different structures in which they appear.

The work, with all its conscious shortcomings and imperfections, had an ambitious objective: not so much to fill the gap in the panorama of Italian doctrine due to the lack of a systematic legal analysis of financial derivative contracts, but at least to reduce it by offering a summary of studies, lessons, research and experience gained “in the front line” alongside the financial operator. In Italy, there was still a great deal of uncertainty as to the legal status of financial derivative contracts, as evidenced by the scarce jurisprudence and doctrine, which on certain occasions expressed contradictory views. Certainly, the diversity of opinions was justified by the fact that some issues were part of vexatae quaestiones, such as the uncertainties in the definitions of stock exchange contracts, the concept of aleatory contracts, the nature of contracts for differences, contracts for securities etc., but this should not be translated into a limitation of the exegesis carried out by the interpreter.

In the following years, his research focused on the legal aspects of credit derivative contracts, which were the subject of several articles and three volumes (see list), the last of which with a preface by Nobel Prize winner for economics, Myron Scholes, published in 2000 and a second updated edition in 2001. He has published two other volumes on the same subject: “I contratti derivati di credito – Profili civilistici e regolamentari”, Giuffrè, 1998 (pp. xv, 288) and “I derivati di credito – Aspetti civilistici, contabili e fiscali”, Giuffrè, 2001 (pp. xviii, 447).

Ten years after the first volume on derivative contracts, Caputo Nassetti, stimulated by the overwhelming evolution of the financial markets (in 1996, for example, there were no real estate derivative contracts, derivatives on economic indices, on maritime transport tariffs…), by the changed legislative framework (the Consolidated Finance Act of 1998, the legislative decree on financial guarantees of 2004, the reform of the bankruptcy law of 2006…), the proliferation of case law that has dealt with derivative contracts and the remaining doctrinal uncertainties, has directed his studies in this area aiming at a sort of theoretical reductio ad unitatem of the phenomenon starting from the causal analysis of all cases known in the practice of trade. The study proposes a new systematic framework of these contracts. In particular, derivative contracts are represented by five prototypes, to which the cases in use in the financial markets can be traced. Two prototypes are typical contracts (forward purchase and sale and option contracts), while the remaining three are atypical contracts based respectively on conditional promises to pay, on the payment of a differential and on the exchange of payments. This analysis also reveals the absence of a unitary concept of derivative contract and the non-coincidence between derivative financial instruments and derivative contracts.

The banking experience gained over several years on the legal, credit and financial aspects of loans linked to contracts and project financing has made it possible to compile in a book entitled “L’appalto bancabile” (Bankable construction contracts) a study of the clauses that are usually included in contracts for them to be considered adequate to allow financing of the principal or the contractor. In fact, practice has identified two diametrically opposed types of contracts in terms of exceptions to the Civil Code and specific clauses depending on whether the principal or the contractor is financed.

Other areas of research and study were irregular pledging, securitisation, bank asseveration, transfer of bank credits, indexation clauses, subordinate debt, while living in Japan, withholding taxes, bankruptcy law and insolvency risks in regulated markets as documented by numerous scientific contributions published in national and international journals in the field.

He collaborates with several legal journals, including Giurisprudenza Commerciale, on articles and comments on judgments.