Tutela preventiva del credito e diligenza nell'adempimento

The essay deals with the issue of remedies by which creditors can prevent non-fulfillment of obligations. The Author rejects those theories that recognize the injunction as a general and atypical action that can also protect credit rights. In the absence of a law provision, indeed, this protection cannot simply be based on a principle of effectiveness. In fact, allowing any claim of the creditor before the deadline for fulfillment means limiting the debtor's freedom and that requires a balance between the conflicting interests, according to a legal evaluation. From this perspective, conflicts find instead a solution in the art. 1176 of the Civil Code which, through the general due diligence clause, imposes additional duties on the debtor, in order to preserve the possibility of principal obligation performance. This rule derives from the social context a criterion of dutifulness, which, unlike the principle of effectiveness, limits the creditor's claim by identifying the behavior that the debtor must observe in order to achieve the result that satisfies the former’s interest for fulfillment. Moreover, the duty of care, as an obligation binding the debtor before the breach, cannot be considered a mere criterion for ascertaining ex post his liability or a cause of termination. At the opposite, its specific purpose allows the creditor to act even in advance for the exact fulfillment of preparatory obligations.