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Suspension or rescheduling of payments in Cura Italia

The Cure Italy Decree introduces a number of notable innovations. Among these, from a more purely civil law perspective, the dictate of Art. 91 which states that “Compliance with the containment measures set forth in this decree is always assessed for the purpose of exclusion, pursuant to and for the purposes of Articles 1218 and 1223 of the Civil Code, of the debtor’s liability, including with regard to the application Of any forfeitures or penalties related to delayed or omitted performance.”
The rule under consideration exposes itself to easy and hasty interpretations, appearing to legitimize the debtor’s failure to fulfill the obligations undertaken and to find an excuse in the public health circumstances present today.
In fact, the provision does not justify non-performance sic et simpliciter but allows the debtor to enjoy one more element in the court’s assessment of the legality of the conduct engaged in.
In fact, the rule defers to the adjudicator to ascertain whether the service due is due and whether the agreed conditions have actually been altered–by today’s public health circumstances.
Not only that. The court, by means of this rule, is called upon to verify whether the restraining measures have actually made performance impossible by, for example, requiring the closure of business premises.
It is clear, therefore, that in the context of a relationship of duration (such as, for example, that of renting for different uses), the debtor will not be able to arbitrarily suspend the payment of the due amount just because of the difficult public health situation that is likely to cause a contraction of revenues. Conversely, the debtor may suspend payment when he or she has had to discontinue the business activity because it is among those not allowed to operate because it is not considered essential.
As is always the case, a large gray area fits in between the two extremes.
This is the case, for example, of restaurant businesses that are allowed to carry out home delivery with premises closed to the public, or of businesses, including clothing businesses, that fit in as much in offline as online sales and that – although they cannot carry out activities on their own business premises – can continue to carry out e-commerce, making use, perhaps, of the warehouses in which the goods to be delivered are stored.
In these cases-and in many others-characterized by a minimum common denominator such as the reduction of activity to certain sales segments in compliance with established containment measures, the much-debated legal obligation to renegotiate, which has its origin in the broader and more general principle of good faith in the execution of any negotiating relationship, comes to the rescue.
Specifically, it should be recalled that the general good faith clause goes so far as to result in a constant adjustment of the contract itself, obliging the parties to renegotiate it in the presence of “disruptive” supervening factors, whenever the agreed terms no longer meet “the economic rationale underlying the conclusion of the contract.”
In this sense, case law has held, for example, that “under the general clause of good faith there is an obligation to renegotiate the content of the contract when there is a material change in the factual or legal situation from that contemplated by the original regulation.”
This theory then fits well with the principle of social solidarity contained in Art. 2 Const. 2, which is a general clause designed to set out from time to time the rules of conduct to be followed by the parties.
It follows that the debtor, who is forced – due to the containment measures – to reduce the activity thus recording a contraction of revenues, can invite the creditor to renegotiate the consideration throughout the emergency period, also establishing criteria for redetermination of the contractual content even for the period after the difficult public health conditions and, therefore, the related containment measures are overcome. The creditor-who does not accept the invitation to renegotiation-will ultimately be exposed to a compensatory obligation for violation of the aforementioned principle of good faith.