Gravità dell’inadempimento e leasing tra disciplina legale, diritto vivente e prassi

The interventions on financial leasing contained in the l. annual for the market and competition, n. 124 of 2017 and in the so-called L. stability for 2016, no. 208 of 2015, rather than marking the typification of the financial leasing discipline and the sub-type of housing leasing, appear to be aimed at overcoming the critical issues related to the user’s default, the source of a huge dispute which in turn generates diseconomies. The quantitative and temporal contours of the “serious breach” outlined by the 2017 legislator act as a counterbalance to the dynamics of the unilateral preparation of the express termination clause. Based on an organic consideration of the resolution for non-fulfillment, free from alleged conflicts between judicial resolution and legal resolution, these outlines cannot, however, be considered sufficient to activate the resolutive remedy which, in the light of art. 1455 of the Civil Code, also requires to evaluate the “interest of the other [party]”. The question relates not simply to the way in which the express termination clause is formulated, but to the dynamic moment that affects the choice to make use of it. In this perspective, focused on the complementarity between the ex ante evaluation made with the express termination clause (and crystallized at the time of the conclusion of the contract) and the ex post one, which art. 1455 contextualizes the moment in which the disturbing event occurs, the writing focuses on some specific applicative hypotheses.