"NEWS July 29, 2016-The termination clause in the lease agreements"
One of the most important contract terms, which usually host and conductor put their attention, is that the eventual termination clause. Under such contractual terms the Parties shall establish ex ante, and then at the time of signing the contract, that their legal relationship can be resolved if one or more specific obligations are fulfilled in the manner identified in the body of the same contract.
From a legal point of view the termination clause is contained in the article 1456 of the Italian civil code according to which "the Contracting Parties may agree that the contract will be resolved if a particular obligation is not fulfilled in accordance with the rules laid down. In this case, the termination entitlement occurs when an interested party declares to the other that it intends to make use of the clause ".
An analysis of the clause emerges as the national legislature would like to structure the clause which provided accessory to the main contract, and he wanted to protect the interests of the individual who must receive contractual lending class, but only to that extent agreed upon with the borrower. Are the parts, so that at the time of writing of the contract, according to their bargaining power, indicates the limit at which the debtor shall be deemed in default.
In particular, the termination clause:
- relieve the lessor by the need to bring a court action to rescind the contract;
- the fixes outside court the contract with a simple "Declaration", addressed to the conductor (and therefore recettizia), that he wanted to take advantage of that clause; Therefore, if a judgment will be, it will tend to the assessment of the resolution and not to its production occurred in the form of judgment;
- gives rise to the creditor a right to cause the termination of the lease.
In the presence of a termination clause contained in the lease governing the non-timely payment of the fee, the Court is not called upon to assess the importance (severity) of the infringement: it will be sufficient to ensure that such non-compliance is attributable to the debtor.
However, housing locations has raised the issue of compatibility between the conclusion of a valid termination and discipline laid down in articles 5 and 55 l. n. 392/1978 planning, in fact, on the one hand, a special rule on recognition of the gravity of the infringement (c.d. Mora qualifier), as an exception to the judge's discretion under article 1455 of the civil code, and on the other, the legitimation of sanatoria of insolvency in court.
On this point the Court stated that:
- "Under the tenancy subject to n. 392/1978, the termination clause in the event of non-payment of the fee to the deadline shall incur the invalidity referred to in article 79 l. cited, but is intended simply to remain quiescent in relation to the possibility of healing in judgment the arrearage pursuant to article 55 law itself; with the result that, where the latter provision cannot be applied (as would be the case if the lessor proposes a judgement terminating the contract itself incompatible with the special amnesty of arrears covered by that provision), the termination clause can be fully, from the beginning, its effectiveness "(see Court of Cassation judgment 9.2.1998 n. 1316);
- "With regard to contracts subject to rules on rent control, the effectiveness of the termination clause, which has been agreed, remains suspended, even if the host has indicated to wish to avail themselves, until the first hearing of the proceedings instituted by the same landlord for the resolution of the lease resulting in eventual ineffectiveness of the clause where the conductor in this healthy hearing the arrears" (see judgment of the Court of Cassation 11.1993 n. 11284).
The termination clause is not finally considered vexatious clause in accordance with article 1341 of the civil code, therefore, does not require approval in writing.
The termination clause cannot be traced among those providing limitations on the right to raise exceptions, exacerbating the condition of one of the Contracting Parties: the right to rescind the contract is inherent in this agreement and such provision only reinforces this right and accelerate resolution, having assessed the importance of the parties in advance a specific failure , and then eliminated the need for an ad hoc investigation, having regard to the interest of the other party (Court of Cassation judgment 28.6.2010 n. 15365).
by Leonardo Pietrobon