EMERGENZA COVID-19: i rimedi civilistici offerti per contrastare il danno patito dalla parte contraente

Our system provides for some hypotheses in which a contract can be terminated upon the occurrence, subsequent to its stipulation, of unforeseeable and extraordinary events. The government measures adopted by the competent authorities in response to the COVID-19 health emergency are to be considered unforeseeable and extraordinary events such as to justify the termination of contracts and/or the extinction of existing obligations.

Specifically, upon the occurrence of objectively unforeseen and unforeseeable facts which make the execution of the contractual performance onerous and/or impossible, the debtor may invoke the occurrence of:

1. definitive impossibility to perform the service;
2. temporary impossibility to perform the service;
3. supervening excessive onerousness.

Definitive impossibility has occurred

The obligation is extinguished when, for reasons not attributable to the debtor, the service becomes definitively impossible to perform. In order to obtain the extinction of the obligation, with consequent exemption from liability, the impossibility of performing the service must have precise characteristics, being: supervening, objective, absolute and not attributable to the debtor.

Temporary impossibility occurred

In the event that the performance becomes only temporarily impossible to perform, the contractual obligation is not extinguished but the obligation to perform is suspended, with the exclusion of the debtor's liability for the delay.

Excessive burden occurred

The obligation becomes excessively onerous when extraordinary and unforeseeable events (such, in this case, are both the measures issued by the Government and the health emergency itself)  impose on the obligor an economic sacrifice that exceeds the normal risk of the contract (to be assessed on a case-by-case basis).

Unlike the impossibility of performance, the excessive onerousness that occurs does not produce any automatic liberating effect (and, therefore, does not automatically terminate the contract). The termination of the contract, in the absence of agreement between the parties (reduction of the contract to equity), must be ascertained and declared judicially.