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Performance of contracts during lockdown period - a decision from the Court of Brescia

On 11 August 2020, the Court of Brescia rejected the urgency proceedings brought according to art. 700 of the Italia Civil Code of Procedure by a consortium of companies against the interruption of the supply of thermal water decided by the defendant.

The facts. The consortium members ceased to pay the invoices for the supply of thermal water starting from April 2020 alleging an impossibility to carry out payments due to the effects on their business activities of Covid -19 pandemic. As a consequence of such failure to pay, the defendant (i.e. Terme e GrandiAlberghi di Sirmione S.p.A.) terminated the contract with suspension of the supply of thermal water.

According to the Court: (i) the payment obligation, being a pecuniary obligation, cannot become objectively impossible; (ii) the unpaid invoices referred to the pre-pandemic period and were therefore extraneous to the period of forced closure and (iii) the exoneration from liability (according to the art. 91 of the “Cura Italia” Decree), does not operate automatically for the sole fact of the sanitary emergency but requires the proof of the facts that have determined the impossibility to carry out the payments;

In light of the above, the Court rejected the request brought by the consortium of companies.

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