Pandemia e responsabilità del debitore: il ruolo dell'interprete

The essay questions whether and to what extent the law of obligations provides balanced and consistent solutions to the exceptional difficulties in fulfilling the obligations caused by the pandemic emergency. To this end, the direct application of the principle of solidarity is excluded and cannot justify judicial decisions that are incompatible with the letter of the law or contrary to the rationality of the system. On the other hand, the use of equity is allowed as a criterion for integrating the legislative provision and implementing a rule that has already been positivized in accordance with its rationale. From this perspective, the essay examines the temporary or partial impossibility of performance. Liability is also excluded when the contingencies related to the Pandemic, while not making the performance absolutely impossible, have prevented the debtor from acquiring the means that he was required to use. Without prejudice to the general principle according to which the lack of financial resources does not constitute an impossibility of performance, on the basis of an interpretation of the emergency legislation, the debtor exceptionally is not liable if he proves that the delay in the fulfillment of pecuniary obligations is not attributable to his fault, but to the observance of the measures for containing the infections. Where instead the debtor has the money necessary to pay but, precisely because of the economic crisis caused by the pandemic, the payment would expose the survival of his company to the risk of serious and irreparable consequences, the duty of good faith, which also binds the creditor, prevents him from demanding timely fulfillment, indirectly excluding the debtor's liability.