Il Diritto degli Affari (Apr 2023)
La rinegoziazione dei contratti di durata e il ruolo del giudice: considerazioni a margine dell’art. 10, comma 1, D.L. N. 118/2021
Abstract
The paper deals with a topic that has come back to the fore in the pandemic period: the power of the court to adapt the contract with the aim to distribute between the parties the losses and gains resulting from changed circumstances, in a fair and equitable manner. The focus here is deliberately on a recent rule of law, related to corporate and bankruptcy law, in favour of an entrepreneur in financial difficulty. This rule is set out in Decree-Law No. 118/2021, which introduced the so-called ‘composizione negoziata' in Italy, with the aim of regulating the negotiations that normally precede a preventive restructuring framework. With the aim to safeguard the going concern of the debtor in financial difficulty, the new rule allows the court, at the debtor's request, to adapt the contract, making it subject to compliance with several prerequisites, including the Codiv-19 pandemic as a reason for excessive onerousness of performance. The author analyses this rule and asks whether there are any procedural remedies that would allow the debtor in financial difficulty – when the contingency is of a different nature – to force the counterparty to renegotiate the contract.
