Comment on Judgment no. 19246 of 2024: The Right of Withdrawal and the Role of Non-Performance

Judgment no. 19246 of July 12, 2024, offers significant insights into the theme of contractual withdrawal, delving into the conditions necessary to exercise this right pursuant to art. 1385 of the Civil Code. In particular, the Court clarified that whoever decides to withdraw from a contract must not be in default, a principle rooted in the need to maintain contractual balance between the parties.

The Right of Withdrawal and its Prerequisites

The right of withdrawal, provided for by art. 1385 of the Civil Code, allows one of the parties to unilaterally terminate the contract, but under certain conditions. The judgment reiterated that:

• The withdrawing party must be up-to-date with its obligations.
• The trial judge has the power to ascertain any non-performance and its relevance.
• It is necessary to assess whether the non-performance has caused a significant alteration of the contractual balance.

The Role of the Trial Judge

A crucial aspect of the judgment is the importance of the trial judge's assessment. Indeed, the ascertainment of non-performance by the withdrawing party falls within the judge's powers, who must carry out a global and proportional evaluation. The Court emphasized that such ascertainment must be duly substantiated and can concern:

Withdrawal pursuant to art. 1385, paragraph 2, of the Civil Code - Prerequisites - Non-default of the withdrawing party - Necessity - Assessment criterion - Ascertainment by the trial judge - Consequences. Regarding the exercise of the right of withdrawal pursuant to art. 1385 of the Civil Code, the party exercising the withdrawal must not be in default themselves, and the ascertainment of their non-performance, falling within the powers of the trial judge and not subject to appeal if duly substantiated, must be carried out taking into account the value of the unfulfilled part of the obligation in relation to the whole, based on a criterion of proportionality, it being necessary to verify, following a comprehensive and global assessment of the parties' conduct, whether, as a result of the withdrawing party's non-performance, a significant alteration of the contractual balance has occurred to the detriment of the other party or whether, instead, such alteration does not depend on the non-performance of the other party.

Conclusions

Judgment no. 19246 of 2024 represents an important clarification in the field of contract law, clarifying that the right of withdrawal cannot be exercised by someone who is in a state of non-performance. The judge's assessment, which must be careful and substantiated, plays a fundamental role in the balance between the contractual parties. This jurisprudential orientation offers useful guidance to those who find themselves facing similar situations, emphasizing the importance of loyal and good-faith conduct in the contractual relationship.