Dott. Caglieri Simone

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I CONTRATTI AL TEMPO DEL CORONAVIRUS: L'INADEMPIMENTO E' QUASI IMPOSSIBILITA' SOPRAVVENUTA

Posted on 19 March, 2020 at 16:05

L’art. 91 co. 1 del DL 17.3.2020 n. 18 (c.d. “Cura Italia”), aggiungendo all’art. 3 del DL 6/2020 il co. 6-bis, dispone che il rispetto delle misure di contenimento contro il Coronavirus è sempre valutato “ai fini dell’esclusione, ai sensi e per gli effetti degli articoli 1218 e 1223 c.c., della responsabilità del debitore, anche relativamente all’applicazione di eventuali decadenze o penali connesse a ritardati o omessi adempimenti”.

La norma imporrebbe al giudice, chiamato a decidere in ordine al singolo rapporto, di valutare l’inadempimento contrattuale alla luce del rispetto delle misure contro il Coronavirus; di queste andrà tenuto conto anche ai fini della maturazione di decadenze o dell’applicazione di penali connesse a ritardati o omessi adempimenti.

L’Autore ritiene che, in applicazione di questa disposizione, non dovrebbe incorrere in conseguenze chi:

- posticipi la data per la stipula del definitivo, stabilita nel contratto preliminare;

- abbia pattuito un termine essenziale, che non può rispettare;

- abbia dato o ricevuto una caparra confirmatoria o abbia pattuito una penale e sia inadempiente.


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