Marcello Mantelli
Lawyer in Milan and Turin

Unlike in the context of international contracting, there is no unique definition of force majeure in Italian law.

In the opinion of doctrine and jurisprudence, the concept of “force majeure” would in fact encompass natural or human events (e.g., earthquakes or wars) that, due to their unpredictability and extraordinariness, are not in fact contrastable as they are beyond the control of the parties.

With reference to the Civil Code, the concept of force majeure is generally traced to the definition contained in Article 1256(1), where it is identified as any “cause not attributable to the debtor” that makes the performance impossible.

Upon the occurrence of such a cause, if it is final, the extinction of the obligation follows, or, if it is only temporary, the non-responsibility for delay in performance on the part of the party – obliged to provide the service – who suffered the force majeure event (Art. 1256, para. 2, Civil Code).

A further reference to the concept of “force majeure” is then found in Art. 1467 of the Civil Code, about contracts with consideration, which grants the debtor the right to request termination of the contract when the performance owed by him has become excessively onerous due to the occurrence of “extraordinary and unforeseeable events,” unrelated to the normal area of the contract.

In this regard, it is worth mentioning Cass. Civ. judgment N. 22396 of Oct. 19, 2006, which defines the “extraordinary and unforeseeable events” referred to in Article 1467 of the Civil Code as two elements having a different nature:

– extraordinary: it is objective in nature, qualifying an event on the basis of the appreciation of elements, such as frequency, size, intensity, susceptible to measurement.

– unforeseeable: it is subjective in nature, referring to the normal ability and average diligence of the contracting party, thus not considering the abstract possibility of the occurrence as sufficient.

A judgment that deserves attention, since it somehow “brings” the Italian concept of force majeure closer to the concept widely known in the context of international contracting, is No. 965 of the Cass. Pen., sec. V, Feb. 28, 1997.

In the aforementioned judgment, in fact, the principle is established that only that which, not only prevents the regular execution of the contract, but also renders ineffective any action of the obligor aimed at eliminating it, can be considered as a cause belonging to the category of “force majeure,” given that the event must not have depended on actions or omissions attributable to the debtor.

This last principle constitutes a concrete representation of the question of the imputability of unfulfillment for non-performance of the contract, which includes all those events that generate a liability in the hands of the debtor.

In particular, these are all those situations that are inexcusable, related to the behavior of the debtor or otherwise foreseeable from the time the contract was drafted.

The occurrence of such hypotheses can never configure a case of “force majeure“, unless the debtor proves that “the non-performance or delay was caused by impossibility of performance resulting from a cause not attributable to him” (Art. 1218 Civil Code).

In this context, liability for custody is of particular importance, as the special rules dictated about transportation of goods (Articles 1693 and 1694 Civil Code), deposit (Articles 1785 and 1787 Civil Code), loan for use (Article 1805 Civil Code) and safe deposit box banking service (Article 1839 Civil Code) refer to the occurrence of a fortuitous event or force majeure as an exemption from liability.

Jurisprudence in this regard adheres to the approach according to which the proof of fortuitous event differs from that of unattributable cause in that it presupposes the exact identification of the fact that made it impossible to perform the service (Civil Cass. n. 6892/1987), the demonstration of the diligence deployed by the debtor being insufficient (Civil Cass. n. 7363/1997).

In light of the above, it will be good – even in a domestic context – to draft a contract that contains a clear and comprehensive force majeure clause and that contains, in detail, a list of events, of an extraordinary and unforeseeable nature, jointly with a general definition of force majeure, the occurrence of which would make it possible to exclude the debtor’s liability in the event of non-performance of the service.