13.03.2020

As is now known, unexpected, urgent and drastic measures are now in place in an effort to contain the spread of coronavirus.

Italy in particular, has adopted drastic measures in the form of emergency decrees that can affect the execution of contractual obligations, making execution impossible or temporarily impossible.

Article 1256 of Italian Civil Code allows the debtor of a service, in certain conditions, to free themselves from their obligations, and therefore avoid being accused of default, or delay, without being subject to the consequences of delayed fulfilment, such as compensation for damage suffered by the creditor of the service.

The impossibility that, pursuant to art. 1256 of the Italian Civil Code, extinguishes the debtor’s obligation or allows it to be delayed (unless the parties have obviously agreed on the essentiality of the term) is to be understood in an absolute and objective sense and consists of the occurrence of a cause, not attributable or foreseeable, which permanently or temporarily prevents fulfilment.

According to art. 1218 and 1256 of the Italian Civil Code, in fact, the debtor is responsible for the non-fulfilment of an obligation up to the limit of the possibility of performance, assuming, until proven otherwise, that the impossibility, temporary or definitive, of the performance is attributable to the debtor for fault.

The supervening impossibility that frees the debtor from the obligation must also consist not in a mere difficulty, but in an impediment, objective and absolute, such that it cannot be removed.

Among the causes that can determine the impossibility of the fulfilment, there is the so-called factum principis, i.e. the order of the authority, not reasonably foreseeable, which prevents, temporarily or definitively, the fulfilment of the contractual performance when the authority provision applies.

In conclusion,

  • in the absence of debtor’s fault (subjective element) due to the unpredictability of the situation which arose as a consequence of the spread of the Codiv-19 infection
  • and the impossibility of performing the service itself by factum principis (objective element),

art. 1256 of the Italian Civil Code can reasonably be considered as the rule applicable to existing contracts, without prejudice to the specificities of the single case to be evaluated in full knowledge of all the facts.