MIXED OBLIGATIONS OF DELIVERY AND PERFORMANCE: DISTINGUISHING BETWEEN PURCHASE AGREEMENT AND TENDER AGREEMENT

The legal characterisation of a contractual relationship is of crucial importance for determining the applicable legal regime and for the effective enforcement of remedies designed to protect the parties’ rights. This qualification becomes even more critical — and at times problematic — when the relationship involves a professional and a consumer, and the object of the contract is a composite obligation combining elements of both delivery (dare) and performance (facere).

In this context, and more specifically regarding the distinction between purchase agreement and tender agreement, with potential implications for the application of consumer protection rules, the Italian Supreme Court (Second Civil Division) delivered an important judgment: ruling No 9389 of 10 April 2025, whereby it quashed and remanded the decision of the Venice Court of Appeal.

As a preliminary point, it is worth recalling that, under Article 1470 of the Italian Civil Code, a purchase agreement is one whereby a party agrees to transfer ownership of a good (or another right) in return for payment. Conversely, the tender agreement, as governed by Articles 1655 et seq. of the Civil Code, involves a party (the contractor) undertaking to carry out work or provide a service — using their own means and at their own risk — in return for a fee payable by the client.

The case concerned a consumer who sought to terminate a contract for the purchase and installation of a pellet stove and its accessories. The claim was initially dismissed on the grounds that the contract was to be classified as a purchase agreement. On appeal, however, the Court reversed this classification and considered it a tender agreement, thereby excluding the applicability of consumer protection remedies.

In addressing the matter, the Italian Supreme Court conducted an interpretative analysis of the criteria for distinguishing between these two types of contracts, especially in cases where the debtor is required to both deliver a good and perform an activity.

The Italian Supreme Court reaffirmed the settled principle whereby the key criterion for distinguishing between purchase agreement and tender agreement lies in assessing whether the performance element (facere) prevails over the delivery of goods (dare), or vice versa. This abstract distinction must be applied to the concrete contractual structure adopted by the parties. In other words, the assessment must be consistent not only with the parties’ subjective intentions, but also with the practical function and purpose of the transaction. As clarified by the Italian Supreme Court, the analysis must focus on the nature of the provider’s activity, rather than on the relative economic value of the components.

The contract is a tender agreement when the material supplied is a mere means to achieve a final product — a result specifically desired by the party. By contrast, it qualifies as a purchase agreement when the work element is simply instrumental to delivering the good in its final form — in other words, when the object negotiated is the good itself, and not the activity underlying its preparation.

Nonetheless, in practice it is often difficult to draw a clear-cut boundary between the two. Contracts may involve intertwined obligations: for instance, a tender agreement may entail an obligation to deliver goods, and a purchase agreement may include minor services. Therefore, when faced with a mixed obligation, the courts must assess whether the production activity is dominant over the delivery of materials, or if, conversely, the provision of goods constitutes the main purpose of the contract and the related service is merely accessory and tailored to the buyer’s needs.

This functional evaluation must take into account both the concrete cause of the contract and the objectified intention of the parties. Hence, the contract is a tender agreement if the provision of labour is the primary purpose, and the materials are ancillary. It is a purchase agreement, however, if the contract’s main aim is to obtain the good, and the labour serves merely to adapt or install it.

In conclusion, the Italian Supreme Court stressed that the nature and extent of any modifications to be made by the party under obligation may also influence the classification. If the modifications or additional services are accessory or merely instrumental (such as installation, in the case at hand), then the contract remains a purchase agreement, as the main element is the provision of a ready-made product. However, if the customisation falls within the scope of the contractor’s ordinary production activity and leads to the realisation of an opus perfectum, the contract qualifies as a tender agreement.

Through this structured reasoning, the Italian Supreme Court clarified the interpretative pathway to be followed in identifying the proper legal classification of mixed contracts. The ruling also has important implications for the availability of remedies, particularly in the consumer context, where the hierarchy of remedies — replacement or repair as primary remedies, and termination only as a last resort — must be respected in the event of lack of conformity.

Authors: Avv. Gianfilippo Chiricozzi e Federica Fanesi