Confirmatory deposit and termination: the Court of Cassation provides clarification with Order no. 29482/2025

When a contractual agreement fails, parties often face a legal crossroads: to request the termination of the contract for breach with compensation for ordinary damages, or to exercise the right of withdrawal by retaining the confirmatory deposit received (or demanding double the amount paid). What happens, however, if there is terminological confusion between these two remedies in the legal filing? The Court of Cassation intervened to provide clarity with Order no. 29482 of November 7, 2025, offering an important interpretive guide for industry professionals and citizens.

The distinction between withdrawal and contractual termination

The Italian Civil Code provides for different remedies to protect the performing party. On one hand, Article 1453 of the Civil Code governs the termination of the contract for breach, which requires rigorous proof of the damage suffered in order to obtain compensation. On the other hand, Article 1385, paragraph 2, of the Civil Code introduces the mechanism of the confirmatory deposit, which allows for withdrawal from the contract by retaining the sum received as a pre-determined and lump-sum liquidation of damages, without the need to prove actual economic prejudice. Jurisprudence has long clarified that these two actions are incompatible and cannot be cumulated.

The principle of law expressed by the Court of Cassation

In the case at hand, involving R. (C. V. M.) and P., the Supreme Court had to determine whether the use of imprecise terminology could prejudice the claim of the performing party. The judges of legitimacy reiterated that substance prevails over form, formulating the following maxim:

The claim for termination of the contract for breach with retention of the confirmatory deposit received (or an order for payment of double the amount paid) must be interpreted as aimed at obtaining a declaration of the legitimacy of the withdrawal that has taken place with retention of the sum received as such, regardless of the nomen iuris used, with the request relating to the deposit assuming decisive importance, because it is inherent to a claim accessory to the exercise of the potestative right of withdrawal and incompatible with a claim under Art. 1453 of the Civil Code for termination and damages according to general rules.

This means that if a party requests the "termination" of the contract but simultaneously asks to retain the confirmatory deposit, the judge cannot reject the claim for inconsistency. On the contrary, the magistrate has a duty to interpret the overall request as a claim for withdrawal, since the claim regarding the deposit is the decisive element that qualifies the action.

Practical consequences for the protection of contracting parties

The decision of the Court of Cassation, in line with the precedents of the Joint Sessions (judgment no. 553 of 2009), guarantees substantial protection and avoids excessive formalism that would harm the party injured by the other's breach. We can summarize the key points of the ruling in the following aspects:

• Prevalence of substance: The judge must investigate the actual intent of the party, beyond the "nomen iuris" (the technical definition) used in the document.
• Simplification of evidence: By qualifying the claim as withdrawal, the performing party is relieved of the burden of proving actual damage, being able to retain the deposit.
• Incompatibility of remedies: The prohibition against simultaneously requesting the deposit and compensation for greater damages, which would require the ordinary path of termination, remains in force.

Conclusions: substantial protection for contracting parties

In conclusion, Order no. 29482 of 2025 of the Court of Cassation reaffirms a principle of legal civilization and procedural pragmatism. Protecting the performing party also means preventing formal errors or drafting inaccuracies in the writ of summons from nullifying the right to obtain justice. For those facing a contractual breach, this ruling represents an additional certainty: the substance of the right to retain the deposit is safeguarded above any formalism.