TRANSAZIONE. — This is the contract by which the parties put an end to a dispute or prevent one from arising, making reciprocal concessions (cf. art. 1965, Italian Civil Code).
For a t. to be possible, uncertainty—at least subjective uncertainty—regarding the relationship that it is intended to regulate is necessary. It may concern patrimonial rights of any kind, including pecuniary consequences relating to the status of persons and civil actions arising from an offense. One may, however, enter into a settlement only with respect to rights that can be disposed of.
The t. in proceedings is a self-composition of the dispute; faced with the risk of a judgment and the possibility of greater sacrifice, the parties may, through the contract of aliquid datum and aliquid retentum, resolve the contentious res dubia.
It is said that the t. enjoys the favor of the law because averting litigation is the greatest good.
The spontaneous settlement of a dispute has intrinsic and formal characteristics differing from those of a judicial resolution: the latter must rest exclusively on justice; in the t., the parties are satisfied not only materially but also morally, so much so that the t. cannot be challenged on grounds of injury (cf. art. 1970 of the Civil Code). The judgment is redditur in invitum, whereas the t. consensu constat; the former is a syllogism of which the legal rule is the major premise, the disputed fact, situation, or thing the minor premise, and the application of the law to the fact the consequence. A judgment can concern only disputes that already exist, whereas the t. can prevent a dispute; and while all disputes can be decided by a judgment, the t. cannot settle a dispute whose subject matter is not at the party’s disposal (in canon law, for example, any agreement circa iura et res spiritualia, and the indissolubility of marriage). The t. may be nullified by those same persons who brought it into being; it is subject to dissolution by mutual consent; a judgment, on the other hand, once it has become final, can no longer be modified. The t. may take place at any stage and level of the proceedings.
Nevertheless, there is equivalence between the judgment and the t.: unlike every other type of contract, the t. settles a legal dispute and therefore, instead of having constitutive effect, as contracts generally do, it has declaratory effect, consisting simply in an ascertainment: in substance, the parties agree in holding that the relationship exists as the t. establishes, or that the correct application of the law is the one agreed upon. The t., in other words, is a source of ascertainment equivalent to a judgment.
BIBLI: cf. the manuals of canon law and Italian procedural law and, in addition: D. De Luca, La t. nel dir. can., Roma 1942. Vittorio Trocchi