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Checklist: what to check before sending a notice to perform
2 min read · Editorial oversight: Avv. Federico Papa
This operational checklist summarizes the essential technical checks to be carried out before sending a notice to perform to ensure its termination effect. Rigorous verification prevents the notice from being ineffective and ensures compliance with the requirements of Art. 1454 c.c.
In brief
The notice to perform under Art. 1454 of the Italian Civil Code requires verifying the significance of the breach per Art. 1455. The notice must be sent in writing via PEC or registered mail, granting at least fifteen days for performance. Including a warning regarding termination by operation of law is mandatory; otherwise, the act only constitutes a formal notice of default. If signed by counsel, a written special power of attorney is required. Pursuant to Art. 1453, judicial termination requests preclude subsequent demands for performance.
- 1.
Verify the significance of the breach
Related practical guide: How to draft a formal notice to perform (diffida ad adempiere) with AIEnsure that the breach is of non-minor importance pursuant to Art. 1455 c.c., as a minor breach prevents the termination of the contract.
- 2.
Check the adequacy of the deadline granted
The deadline for performance must not be less than fifteen days, unless otherwise agreed by the parties, or a shorter term is appropriate given the nature of the contract or usage pursuant to Art. 1454 c.c.
- 3.
Include the warning regarding termination by operation of law
The notice must state expressly that, should the deadline expire without performance, the contract shall be deemed terminated by operation of law pursuant to Art. 1454 c.c.
- 4.
Verify the written form of the notice
The notice to perform must be communicated in writing, as it is a formal act that directly affects the stability of the contractual relationship.
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5.Verify the exact identification of the recipients
Verify that the debtor's details are correct to avoid disputes regarding valid receipt or the passive legal standing of the notified party.
- 6.
Specify the unfulfilled obligation
Precisely describe the requested performance, avoiding generic phrasing that could render the notice or the subsequent termination uncertain.
- 7.
Check the validity of the signature and power of attorney
If the act is signed by a lawyer, verify the presence of a written special power of attorney expressly granting the authority to issue the notice.
- 8.
Ensure the traceability of the delivery
Use exclusively certified email (PEC) or registered mail with return receipt to guarantee conclusive proof of the delivery date and the start of the granted period.
Frequently asked questions
What is the consequence of omitting the reference to termination by operation of law?
Without the warning required under Art. 1454 c.c., the notice will only serve as a formal notice of default and will not produce automatic termination.
Can performance be demanded if termination has already been requested in court?
No, pursuant to Art. 1453 c.c., once termination has been requested in court, performance of the obligation can no longer be demanded.
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