Judgment No. 19123 of 2024: Forced Execution and Impossibility of Performance

The Court of Cassation, with order no. 19123 of July 11, 2024, ruled on a case of forced execution concerning the delivery of movable goods. The central issue was whether, in the event of the obligor losing possession of the goods, the creditor could proceed with forced execution pursuant to articles 605 et seq. of the Code of Civil Procedure (c.p.c.).

Content of the Judgment

The Court reiterated a fundamental principle: if the specific movable goods subject to a delivery order are no longer in the obligor's possession or have been destroyed, the creditor does not have the right to proceed with forced execution. This applies regardless of whether the impossibility of performance is attributable to the debtor. The headnote of the judgment reads:

In general. If the specific movable goods, subject to a delivery order resulting from an enforceable title, are no longer in the obligor's possession or have been destroyed, the creditor does not have the right to proceed with direct forced execution for delivery pursuant to articles 605 et seq. of the c.p.c., regardless of whether the impossibility of performance is attributable to the debtor, as such circumstance has no relevance in the opposition proceedings to execution, but only in any liability proceedings against the debtor.

This principle is particularly relevant for situations where, for example, an enforceable injunction orders the delivery of documents, some of which have been destroyed by the obligor due to the expiry of the retention period. The Court clarified that the impossibility of performance does not justify forced execution, but could give rise to civil liability for the debtor.

Practical Implications of the Judgment

The decision of the Court of Cassation has several practical implications for the parties involved:

• For creditors: it is essential to verify the availability of the goods before undertaking enforcement action.
• For debtors: they cannot be forced into execution if the goods are no longer in their possession, but may be subject to liability for the impossibility of performance.
• For lawyers: it is essential to provide adequate advice on the risks and legal implications of enforcement actions, taking into account recent case law.

Conclusions

Judgment no. 19123 of 2024 represents an important clarification on the right to forced execution in Italy. The Court has established that the mere impossibility of performing the obligation, even if attributable to the debtor, does not allow the creditor to proceed with forced execution if the goods are no longer available. This decision underscores the importance of proper management of expectations and legal actions, both by creditors and debtors. In an ever-evolving legal landscape, it is crucial to stay updated on the implications of judgments concerning forced execution.