How to draft the exception of non-performance (eccezione di inadempimento) with AI

The steps

1. 1.

   Verification of reciprocal obligations

   The first step is ensuring the obligations are linked by a 'nesso sinallagmatico' (synallagmatic link), meaning one performance justifies the other. The Art. 1460 defense applies only to reciprocal contracts. You must verify if performance deadlines have expired for both parties or if the counterparty was required to perform first. If the contract stipulates different timelines, the exception is available only to the party whose performance is due later or simultaneously.

2. 2.

   Assessment of good faith and proportionality

   The exception cannot be raised if the refusal to perform contradicts 'buona fede' (good faith). This implies a proportionality test: the counterparty's breach must be sufficiently serious to justify suspending one's own performance. A minor or merely secondary breach by the counterparty does not authorize the refusal of a primary obligation. edit.legal can assist in comparing the importance of both performances based on the specific contractual clauses.

3. 3.

   Procedural or out-of-court framing

   The 'eccezione d'inadempimento' can be drafted in an out-of-court formal notice to prevent 'mora debendi' (default), or as an 'eccezione in senso stretto' (defendant's affirmative defense) within a statement of defense. If raised in litigation, the judge cannot recognize it 'ex officio', so it must be pleaded specifically and timely. You must clearly state which of the counterparty's performances is missing and how it impacts the contractual balance.

4. 4.

   Structuring the evidence of breach

   While the burden of proof follows general criteria, the party raising the exception must allege the counterparty's breach. It is necessary to document the source of the obligation (the contract) and describe the counterparty's failure to act or defective performance. In cases of partial performance, the exception should generally be limited to the portion of the performance still due, unless the defect renders the entire performance useless to the creditor.

5. 5.

   Analysis of restrictive clauses (Art. 1462 c.c.)

   Before proceeding, it is crucial to verify the absence of a 'solve et repete' clause. Pursuant to Art. 1462 c.c., such clauses prevent a party from raising exceptions to avoid or delay performance. If present and valid, the exception of non-performance cannot be used to suspend payment, although the right to subsequently sue for restitution or damages remains reserved.

Legal basis: Art. 1460 c.c.Art. 1453 c.c.Art. 1455 c.c.Art. 1462 c.c.Art. 1375 c.c.