The reciprocal request for resolution by the parties determines the termination of the contract

Civil Cassation, 6th civil section, order no. 19706/2020

The Supreme Court has reaffirmed the principle that the Judge must in any case declare the resolution of the contract when the contracting parties ask each other to terminate it.

The Ermellini, examining an appeal against sentence no. 728/2018 of the Court of Appeal of Perugia, confirmed the previous jurisprudential orientation, according to which the request of both parties to resolve the contract determines the need to terminate the contract. In the specific case, the dispute originated from a request by the plaintiffs for a conviction to sell a property (according to art. 2932) based on a preliminary contract, which was followed by a counterclaim for resolution for breach of contract. During the proceedings, the plaintiffs changed their claim and in turn requested termination for non-performance.

Following two judgments unfavorable to the plaintiffs, both at first and second instance, the Court of Cassation decided to accept the appeal, referring it to the Court of Appeal of Perugia. In particular, in accepting the appeal, the Court of Cassation has taken up the principle of law according to which, even though the will of the parties is extraneous to a mutual resolutory negotiation agreement, the parties have directed themselves to the identical purpose of the dissolution of the contractual relationship that has arisen between the parties.

Attached is the order in question.

Fabiano Belluzzi