Congruità del termine per adempiere indicato in diffida e rilevanza del contegno tenuto nella fase di esecuzione del contratto (nota a Cass. 14 maggio 2020, n. 8943).

The commented Italian Supreme Court’s decision addresses the issue of the adequacy of the additional period of time to be fixed by the innocent party in order to terminate the agreement. The judgement states that the notion of ‘nature of the contract’ under Art 1454, para 2, does not include the non-performing party’s conduct. After giving a short insight into the function and the structure of the remedy, the Author makes some critical remarks in the perspective of the judicial assessment of the sufficiency of the additional period of time to be fixed to terminate the contract. Notably, it is pointed out that failing to take into account the conduct of the parties prior to the issuance of the notice fixing the additional period of time is inconsistent with the rationale of the remedy. Instead, the judge should balance the conflicting interests of the contracting parties, namely, as to the innocent party, to be freed quickly from the unperformed contract and, as regards the other, not to be deprived of it without getting a last chance to fulfil its obligations.