Where an immediately enforceable title does not exist, the main instrument for recovery of the debts arising out of commercial contracts remains the request for a judicial order for payment ("decreto ingiuntivo").
Even when a written contract is not available, the extension by the precedents of the role of the supporting evidence of accounting records even outside those cases of "supply of goods or of cash" under art. 634 of the Code of Civil Procedure (now confirmed by recent legislation), has rendered it possible to proceed in this way in the greater part of cases in which the debtor is resident in Italy.
A problem however encountered in practice is the ease with which the debtor manages to delay payment for the entire time of an ordinary legal proceedings each time the amount of the order obtained is even just a little higher than the effective amount due. In said case once an opposition is proposed in a timely way it is impossible for the Court to grant provisional enforcement of the order which is opposed even if the debtor does not pay the sums which are not contested, and the greater part of the debt is recognised. This being the case it is obviously impossible to declare the enforceability of an order which will in the end be revoked, or a "partial enforceability" of it.
Said situation justifies the greatest possible accuracy and updating in quantifying debts which are to be recovered, and the uttermost care by effective legal assistance in eliminating all waiting time from when a counsel is instructed to the time of presentation of the request.
Many debtors in fact, especially large companies in financial difficulties or public bodies, frequently make derisory payments or even propose vexatious oppositions on the basis of small payments effected after the presentation of the petition or even after having received the service of the order which has been issued. The raising of the legal interest rate to ten per cent, since it came together with the fact that the liquidation of the damages arising from inflation is no longer indicated in orders, certainly was not sufficient to end said initiatives, which were taken in the expectation of extending, perhaps by three years, payments or enforcements or even bankruptcies. And if the position expressed in said oppositions were to be correct, any debtor would be able to easily avoid the immediate enforcement of orders which are vexatiously opposed by taking care to frequently pay symbolic amounts so as to render the sums due no longer updated between the presentation of the petition and the issuing of the order.
To counter this trend, many precedents, among which the judgement no. 2884/91 of the Court of Milan may be mentioned, confirmed the opposite opinion. More specifically, according to what was decided, "the relevant payment for the purpose of the revocation of the order (and therefore of its provisional enforceability during the proceedings) should be identified with that effected on a date prior to deposit of the petition for the order".
In fact, "in the proceedings for an order for payment the time of proposal of the claim is that on which it is brought to the awareness of the Court and coincides with the day upon which the petition is presented in the registry". The debtor may therefore freely have his claims prevail should a new payment of amounts already paid after the presentation of the petition be claimed upon the basis of the order; but he cannot utilise said payments for the purpose of obstructing and delaying the payment of the residual amount due.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
