- Tribunale di Milano
DAMAGE CLAIM BETWEEN TWO ITALIAN PARTIES - REFERENCE TO THE UNIDROIT PRINCIPLES AS A MEANS OF INTERPRETING THE APPLICABLE DOMESTIC LAW (ITALIAN LAW)
TERMINATION - RESTITUTION BY PARTIES OF PERFORMANCES RECEIVED - ALLOWANCE IN MONEY IF RESTITUTION IN KIND IMPOSSIBLE - ALLOWANCE TO BE MADE ONLY IF REASONABLE (ARTICLE 7.3.6 UNIDROIT PRINCIPLES)
Ms A sued Dr B, a dentist, in order to obtain the termination of the contract, the refund of the payments remitted and compensation for material and non material damages suffered because of the professional misconduct by Dr B.
The court found that Dr B did not prove that the breach of contract was determined by the impossibility of the performance due to a cause non-chargeable on her. Nevertheless, the court did not consider it a grave breach and therefore rejected the claim on the termination of the contract. Likewise, the court rejected the claim for the refund of the payments remitted to Dr B, on the same grounds provided in the case previously analysed (Tribunale di Roma, 28 July 2004, in Unilex). Indeed, the judge quoted the relevant paragraph of that case, also referring to Article 7.3.6 of the UNIDROIT Principles for the above mentioned reasons.
(cf. C. Martinetti in "Perspectives in Practice of the UNIDROIT Principles 2016", IBA Publication 2019, p. 276)