ITALY LAW AND PRACTICE Contributed by: Giorgio Berlingieri, Alberto Massimo Rossi, Alfredo Lizio, Alberto Torrazza, Simone Gaggero and Filippo Cassola, ADVANT Nctm
relevance of any specific contractual clauses, reference can be made to the following situa - tions in particular: • a supervening impossibility of performance for reasons not attributable to the debtor (Articles 1218, 1256 and 1463 of the Italian Civil Code); and • a supervening hardship in performance (Arti - cles 1467 et seq of the Italian Civil Code). Under Article 1218 of the Italian Civil Code, a debtor who does not perform the obligations due under a contract exactly is liable for damag - es, unless they prove that the non-performance (or delay) was due to impossibility of the perfor - mance for a cause not attributable to them. At the same time, under Article 1256 of the Ital - ian Civil Code, a contractual obligation is termi - nated due to a supervening impossibility that is not attributable to the debtor. As for contracts with corresponding obligations, Article 1467 of the Italian Civil Code provides that the contract may be terminated when the obligation of one of the parties has become excessively onerous due to extraordinary and unpredictable events. It appears evident that, under Italian law, both the concept of frustration and force majeure are strictly linked to the concept of “cause not attributable to the debtor”. Frustration gener - ally refers to a radical change in the contractual circumstance which makes the performance impossible without either party defaulting, while force majeure will have to result from an external, unpredictable and irresistible event in order to be acknowledged.
Specific provisions regarding force majeure and frustration are also provided in the Italian Navi - gation Code. With regard to timecharters, Article 391 of the Italian Civil Code states that no freight is due for the period during which the ship could not be used for causes not attributable to the charterer. As for non-arrival or delayed arrival of the vessel, Article 427 of the Italian Civil Code provides that if the ship’s departure is prevented or excessive - ly delayed due to force majeure the contract may be terminated. However, if the ship’s departure or the prosecution of the voyage is temporar - ily prevented due to causes not attributable to the carrier, the contract will remain valid under Article 428 of the Italian Civil Code. In relation to laytime, Article 445 of the Italian Civil Code provides that the expiring of the time limit will be suspended during days when operations are prevented due to causes not attributable to the shipper or consignee. Contracts (including shipping contracts) usually include detailed force majeure clauses, defining a force majeure event as an unexpected event, action or circumstance that: • is not reasonably foreseeable by the affected party at the time of the conclusion and/or execution of the contract; • is beyond the reasonable control of the affected party; • cannot be attributed to the affected party; and • prevents the affected party from fulfilling its contractual obligations. Considering these criteria, the COVID-19 pan - demic appears to have been a force majeure event, particularly with respect to the non-per - formance of shipping contracts, such as late
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