Commentary on Judgment No. 8713 of 2024: The Enforceability of Non-Performance and the Solve et Repete Clause

The recent order No. 8713 of April 2, 2024, by the Court of Cassation offers an important reflection on the enforceability of non-performance in contractual obligations. In particular, the judgment focuses on the application of the solve et repete clause, provided for by Article 1462 of the Italian Civil Code. This article provides a clear framework regarding the management of contractual breaches and the legal consequences that arise from them.

Context of the Judgment

The Court declared the appeal inadmissible against a judgment of the Court of Appeal of Milan, which had declared the claim for the ascertainment of the illegitimacy of the invoicing for the supply of electricity to be procedurally barred. The appellant, M. R., had not demonstrated that she had made the payment during the course of the proceedings, an essential element for her claim to be accepted. This aspect is relevant, as the solve et repete clause is based on the idea that payment must be made for disputes relating to any non-performance to be examined.

ON THE ENFORCEABILITY OF NON-PERFORMANCE Solve et repete clause - Effects - Performance occurring during the proceedings - Prior performance - Procedural prerequisite - Exclusion - Factual situation. The solve et repete clause, provided for by art. 1462 of the Civil Code, having a fundamentally substantive legal content, achieves its function even if performance occurs during the proceedings and as a result of a non-final judicial measure, with the consequence that prior performance is not classifiable as a procedural prerequisite and the exception or counterclaim potentially affected by the operation of the clause can be examined when, even if during the proceedings, the right has been satisfied. (In this case, the Supreme Court declared the appeal inadmissible against the judgment which had declared the claim for the ascertainment of the illegitimacy of the invoicing and the request for payment of the consideration for the supply of electricity to be procedurally barred, as the appellant had not alleged and proven that she had proceeded with the payment during the proceedings).

Implications of the Solve et Repete Clause

The solve et repete clause is of crucial importance in contracts, as it establishes that, in order to oppose a payment request, it is necessary to demonstrate performance. This principle is also fundamental in judicial contexts, where proof of performance becomes an essential prerequisite for the validity of the exceptions raised. The main implications of this clause are:

• Payment request: the obligor must demonstrate payment to contest the legitimacy of the request.
• Non-performance: it is not sufficient to complain of non-performance, but it is necessary to prove that performance has been rendered.
• Procedural effects: performance during the proceedings does not preclude the examination of counterclaims.

This judgment, therefore, clarifies that performance can occur even during the proceedings, without this preventing the possibility of examining claims relating to non-performance.

Conclusions

Judgment No. 8713 of 2024 by the Court of Cassation represents an important milestone in understanding contractual dynamics and issues related to non-performance. The confirmation of the validity of the solve et repete clause underscores the importance of respecting contractual obligations and the need to prove performance in order to contest any claims. For professionals and businesses, this judgment offers significant food for thought in managing contractual disputes, highlighting the importance of proper documentation and a well-structured defense strategy.