Inadempimento anticipato nella realtà italiana e nella prospettiva europea. Der antizipierte Vertragsbruch im italienischen Recht in europäischer Perspektive.

The subject of my PhD thesis is the anticipatory breach of contract. The doctrine of the anticipatory breach originates in the common law systems and regulates the cases in which it is clear that there will be a non-performance at the time the contractual obligations become due. In these cases English law recognises the aggrieved party a right to terminate the contract and to sue the other for damages before the other’s party obligation becomes due. On the contrary, traditionally, civil law legal systems did not contain any express provision regarding such kind of breach of contract, although, lately, several legislators (as, for example, the German one) have adopted provisions granting special remedies for an anticipated non-performance. Additionally, similar provisions were introduced in the Uniform Law on the International Sale of Goods and in other proposals enacting uniform contract law rules. The analysis of these provisions shows that there are two main remedies available to the non-breaching party before the performance is due. First, the party may terminate the contract in advance, when it is certain that a non-performance will occur. On the other hand, if the party fears a future breach of contract, but it is unsure about this, it may demand adequate assurance from the other party and meanwhile suspend its performance. The right to demand assurance avoids the risk of an incorrect prediction of the future breach and, at the same time, grants the debtor another possibility to perform. As far as the right to damages is concerned, several codes and legal texts do not expressly recognise the creditor’s possibility to claim for damages prior to the date set for performance. However, the courts and the doctrine admit the possibility for the creditor to claim damages as a consequence of an anticipatory breach. My PhD thesis focuses on the Italian legal system, where a specific regulation of the issue of the anticipatory non-performance is not in place. The purpose of the dissertation is to understand whether such non-performance can be admitted, as the prevailing opinion states. Furthermore, the thesis attempts to understand which remedies could be granted to the non-breaching party in consequence to an anticipatory breach of contract.