The Italian Law Journal | ItaLJ

3 THE ITALIAN LAW JOURNAL NO. 2 (2017)

The Constitutional Impact of the Exceptio Inadimpleti Contractus 

by Alberto Maria Benedetti

This article deals with the proposition that the exception of non-performance – suspending the execution of a given performance – engages the enjoyment of constitutionally-protected rights. Using inspiration from interesting Colombian jurisprudence, the author believes that, in such cases, the control over the use of the exceptio inadimpleti contractus can no longer be entrusted to a judgment of good faith. It should therefore take into account the constitutional interest of the debtor to the continuity in the enjoyment of a given performance. This is on the basis that this interest may, on balance and under certain conditions, prevail over that of the creditor to the performance of the contract.

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