Un'altra anomalia: l'eccezione d'inadempimento "criptoredibitoria"

The examined decision confirms that the buyer can exercise the right to withhold his performance as a remedial response to the delivery of defective goods. The comment highlights the anomaly of a use of the exceptio inadimpleti contractus which does not tend to the preservation of the contract but to its effective termination, without the restitution of the res vendita or its equivalent. Moreover, in a situation where - as the Sezioni Unite in 2019 recalled – the plaintiff is not supposed to benefit of the relaxation of the burden of proof considered normally operating in the event of breach. This double order of deficiencies casts some shadow on the reasonableness of the case-law followed by the Cassazione