194 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY 1. THE LEGISLATIVE CONTEXT AND GENERAL PRINCIPLES OF LAW Before going into detail on the emergency measures adopted in Italy, it is necessary to briefly resort to the general principles of law, which are necessarily referred to in this context. The legal institutions that apply in domestic law in this circumstance are basically related to “force major”2, "supervened impossibility of performance"3 and the consequent "frustration of the contract” and the “withdrawal”. Regarding the impossibility of the performance: Article 1218 of the Italian Civil Code (CC) states that “the debtor, who does not exactly perform the obligation due, is required to pay damages, if he does not prove that the failure or delay was caused by the impossibility of the obligation deriving from a cause not attributable to him” and Article 1256 CC statues the extinction of the obligation when, for a cause not attributable to the debtor, the performance becomes impossible. For contracts, the impossibility of performance entails the frustration of the contract. Moreover, based on Article 1463 CC, if the contracts are for remuneration, the party released, due to the impossibility of the performance, cannot request the counter-performance and must return what has already been received, according to the rules relating to the repetition of the undue. It must be an absolute, total and unpredictable impossibility. Predictability, in fact, should force the debtor to work to avoid the impossibility. Even the jurisprudence has constantly considered the impossibility of performing the obligation, capable of freeing the debtor from his bond, as an impossibility “in an absolute and objective sense” which “is not identified, therefore, with a simple difficulty of fulfilling (...), and that is, with any cause that makes the fulfilment more expensive (...), but it consists in the occurrence of a 2 The force majeure clause is a clause typical of international contracts. The Italian legal system does not contain an express definition of force majeure. However, internationally, there are several references: the Vienna Convention of 1980 and the Unidroit Principles, and, in 2003, the International Chamber of Commerce developed a specific standard clause the ICC Force Majeure Clause 2003, as well as the ICC Hardship clause. The force majeure: “Unless otherwise agreed in the contract between the parties expressly or impliedly, where a party to a contract fails to perform one or more of its contractual duties, the consequences set out in paragraphs 4 to 9 of this Clause will follow if and to the extent that that party proves: [a] that its failure to perform was caused by an impediment beyond its reasonable control; and [b] that it could not reasonably have been expected to have taken the occurrence of the impediment into account at the time of the conclusion of the contract; and [c] that it could not reasonably have avoided or overcome the effects of the impediment.”. 3 For an analysis of the supervening impossibility of the performance, see, among others: C. Marchesini, The supervening impossibility in the recent guidelines (L’impossibilità sopravvenuta nei recenti orientamenti), The case of SARS, Milan, 2008, p. 309.
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