Appunti per una teoria dell’inibitoria come forma di tutela preventiva dell’inadempimento

Risultato della ricerca: Contributo in rivistaArticolo in rivista

Abstract

The essay is focused on the study of injunction as an atypical instrument aimed to operate as a specific performance against the non-fulfillment of an obligation. Particularly, the article focuses on the idea that an injunction can have the widest subject, both in the sense that it can be prohibitory or mandatory, and that it can be applied to every kind of claim. Moreover, its operation must be independent from the possibility to execute the sentence itself. Corroboration for this claim comes from the enactment of article 614-bis c.p.c., which finally provides our legal system with the atypical coercive action aimed to stimulate the spontaneous fulfillment especially of obligations having an infungible content – like the French one with astreintes or the German one with Zwangstrafen. As a matter of fact, the provision for a pecuniary penalty to be paid for any delay on the fulfillment of a judiciary sentence removes any doubt about the legitimacy of the atypical injunction and, touching upon the focus of the present study, about the legitimacy of an atypical injunction in the context of contract law. Elaborating upon this premises, this paper aims to demonstrate that the contractual injunction can operate before a non-compliance has been committed, when there are significant signals that a non-compliance is going to happen. Indeed, along the lines of the English instrument known as «anticipatory breach» (whose model has been replicated in the United Nations Convention on Contracts for the International Sale of Goods (CISG) and in the most important drafts of European Contract Law), this study suggests that the creditor, based on the likelihood and the proximity of the risk of non-fulfillment, should be able to claim the compliance of his or her credit even before the terms for compliance expire, in order to prepare, also through the use of the 614 bis-action, a remedy to prevent said non-compliance from happening.
Titolo tradotto del contributo[Autom. eng. transl.] Notes for an inhibitory theory as a form of preventive protection of non-fulfillment
Lingua originaleItalian
pagine (da-a)721-801
Numero di pagine81
RivistaEUROPA E DIRITTO PRIVATO
Stato di pubblicazionePubblicato - 2016

Keywords

  • inadempimento
  • inibitoria
  • injunction
  • non-fulfillment
  • preventive protection
  • tutela preventiva

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