Meaning: is the situation where the contract at the request or initiative of the performing party for breach of the Other Party is resolved
The hypothesis stated by art. 1453 cc responds to reasons of legal logic and common sense.
It is clear that if a party has performed his obligations, he expects that the other do likewise, given the continuing of the failure of a party, the other "performing" in front of two roads him:
- demand performance of the contract;
- rescind the contract.
This power of choice, however, is not without limits. Article. 1453 establishes a principle.
if called the performance you can always ask then the resolution, but if it were made before the resolution is not possible demand performance
The reasons for this limitation are intuitive, but whatever the choice, performing party will necessarily damages suffered as a behavior of the other party.
Article. 1453 has, in fact, that it damages "in any case," referring, that is, both cases of request fulfillment, both cases of termination, unless the damage has actually occurred.
Bear in mind, however, another important aspect concerning the termination of the contract;
Code art. 1453 speaks precisely of non-compliance in order to have resolution, implying that this failure must be due to the fault of the debtor and therefore in the absence of fault of the debtor, you can not ask for the resolution, and, of course, obtain damages, that is premised on precisely the fault of the debtor, which, however, is presumed (see Cass. Civ. n.2853/2005)
at this point, however, you can have two situations in the first performance is still possible , and then it is just a delay in for reasons not attributable to the debtor, will nevertheless perform his performance, albeit late in the second case the failure may be permanent, and then the other party, except that it must still perform his performance, may rescind the contract pursuant to art. 1463 cc that was impossible.
summarize, then, that leads to the specific details of the resolution.
- must be attributed;
- must be substantial.
the contract can not be solved if the failure of either party has taken of the interests of the minor
assumptions similar to this article. 1455 cc is that multilateral agreements in respect of the failure, as can be to society.
sets, in fact, art. 1459 cc in these contracts that the failure of a party does not involve the termination of the contract, unless the non-performance should not be considered essential.