Eventi esterni e rischi di demolizione del contratto. Il contratto ‘aperto’ all’adattamento: meccanismi e clausole

The Author analyzes the effects that the public containment measures against COVID-19’s spread have had on duration contracts under execution. The general framework regulated by the Civil Code for the hypothesis of supervening impossibility or excessive onerousness occurring in contracts providing for mutual counter-performance – hypothesis into which the present case might fall – should lead to the termination of the contract. Nonetheless, those guidelines appear not to be suitable to face this epochal emergency neither in the perspective of social solidarity nor in the perspective of the economic efficiency in the market. The Author examines the possibility of intervening in the contractual relationship to rebalance its economic structure, thus enabling the continuation of it “readjusted”. However, it has been pointed out that the Italian legislator has not introduced any specific legal mechanism suitable for this purpose, but it merely intervened with few uncoordinated and fragmentary rules for individual contract types (in particular the lease). The only significant intervention of a general nature is that dictated by paragraph 6 bis of art. 3, of the d.l. 23 February 2020, n. 6, (introduced by art. 91 of Legislative Decree 20.3.2020, n. 18), which requires the Judge to “always” assess whether the compliance with the COVID-19’s containment rules should result in a supervening impossibility of the performance for a cause not imputable to the debtor and also to assess its relevance for the computation of compensation for damage. The Author analyzes the real extent of this provision highlighting numerous interpretative doubts. Finally, the Author also briefly deals with the renegotiation tool that has been very carefully and with great confidence studied by the Italian doctrine also following the favorable position taken by the Supreme Court in a well-known thematic report.