Termination for breach of contract vs. specific performance. The relationship between these two remedies comparing the Italian civil code concerning contracts in general and the principles of European Contract Law

This paper analyses the relationship between specific performance and termination for breach of contract as laid down in the Italian legal system and as is provided for in the principles of European Contract Law. In particular, the study explores the manner in which the two remedies concur to protect the party victim of the non-performance and their applicative assumptions, in order to understand whether the aggrieved party is really free in his choice of remedies against breach of contract – from the point of view of an unconditioned application of the termination remedy even if it is so drastic as to determine the discharge of the contract – or whether, instead, termination of contract appears to be subject to the protective measures that keep the contract in force – with a view to favour the preservation of the contract. Concerning this, the comparative analysis shows how the existing differences between the Italian legal system and the rules of European Contract Law greatly diminish in relation to how Italian case law applies the two remedies.