Risk allocation in Italian commercial contracts: key provisions, distress clauses and the legal framework for cross-border transactions.
Risk allocation issues arise when: a contracting party encounters financial distress; performance becomes commercially impossible; or cross-border disputes reveal gaps in governing law and jurisdiction provisions.
Article 1467 Civil Code: eccessiva onerosità sopravvenuta — where performance is excessively burdensome due to extraordinary and unforeseeable events, the obligor may request termination.
Article 1218 Civil Code: liability for non-performance; the debtor must prove impossibility not attributable to it.
CCII interaction: termination clauses triggered by insolvency may be restricted under Article 97 CCII where a party accesses a pre-insolvency procedure. Reference: EUR-Lex.
Cass. civ., sez. III, [verificare estremi]: conditions for applying Article 1467 Civil Code in commercial contracts affected by macroeconomic disruption.
Trib. Milano [verificare estremi]: enforceability of ipso facto clauses triggered by access to a CCII pre-insolvency procedure.
Fabiani, in Ristrutturazioni Aziendali [riferimento indicativo — verificare], on the impact of insolvency procedures on commercial contracts.
Key drafting considerations: (1) change of control and insolvency triggers — reviewed against CCII restrictions; (2) MAC provisions — calibrated to Italian law standards; (3) force majeure — aligned with Article 1218 Civil Code; (4) governing law and jurisdiction — including Brussels I Recast recognition.
See: corporate law Italy.
Where a counterparty is in financial distress, the commercial relationship can be restructured — but requires early engagement.
See: restructuring lawyers in Italy.
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Related: corporate law Italy · insolvency proceedings Italy · restructuring lawyers Italy
This article is for informational purposes only and does not constitute legal advice.