[Autom. eng. transl.] The warning to fulfill and the possibility of recovering the contract resolved The issue, which sees divided doctrine and majority jurisprudence, focuses on the issue of the possibility, for the intimidation of warning to fulfill, to renounce to the resolving effects that are produced, according to the norm of 3rd co. art. 1454 cc, with the useless expiry of the term established by the creditor in a warning. In particular - while to say the jurisprudence - the resolving effects consequent to the notice of the warning remain in the availability of the creditor, who can therefore always renounce it and claim the execution of the contract, the doctrine considers, on the contrary, that this opportunity is absolutely precluded to the intimant, in compliance with the principle of the protection of the defaulting contractor's custody against the arbitrary will and convenience of the creditor. In an obiter dictum, Cass., SU, 14.1.2009, n. 553 expresses detachment for the dominant jurisprudential position. Moving in a diametrically opposite direction, it fully accepts the reasons for the doctrine: as the latter, it affirms the automaticity of the resolution with the expiration of the term announced and the consequent inadmissibility of a renunciation of the resolving effect, evidently subtracted by law from the free availability of the creditor.
|Translated title of the contribution||[Autom. eng. transl.] Be wary of fulfilling: the problem of the reversibility of the resolving effects|
|Number of pages||7|
|Journal||OBBLIGAZIONI E CONTRATTI|
|Publication status||Published - 2009|