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Checklist: What to Check Before Sending a Notice to Perform

2 min read · Editorial oversight: Avv. Federico Papa

This operational checklist summarizes the essential preliminary checks to be carried out before sending a notice to perform, ensuring its terminating effect. Rigorous verification prevents the notice from being ineffective and ensures full compliance with the requirements set forth in Art. 1454 of the Italian Civil Code.

In brief

The notice to perform under Art. 1454 of the Italian Civil Code requires verifying the significance of the breach per Art. 1455. The notice must be sent in writing via PEC or registered mail, granting at least fifteen days for performance. Including a warning regarding termination by operation of law is mandatory; otherwise, the act only constitutes a formal notice of default. If signed by counsel, a written special power of attorney is required. Pursuant to Art. 1453, judicial termination requests preclude subsequent demands for performance.

1.
Verify the significance of the breach
Ensure that the breach is objectively serious pursuant to Art. 1455 of the Italian Civil Code, as a minor breach prevents the termination of the contract.
Related practical guide: How to draft a formal notice to perform (diffida ad adempiere) with AI
2.
Check the adequacy of the granted deadline
The deadline granted for performance must not be less than fifteen days, unless otherwise agreed by the parties or unless a shorter term is deemed appropriate due to the nature of the contract or usage under Art. 1454 of the Italian Civil Code.
3.
Include the warning regarding termination by operation of law
The notice must expressly state that, should the deadline expire without performance, the contract shall be deemed terminated by operation of law pursuant to Art. 1454 of the Italian Civil Code.
4.
Verify the written form of the notice
The notice to perform must be communicated in writing, as it is a formal act with a receptive nature that directly affects the stability of the contractual relationship.
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5.
Verify the exact identification of the recipients
Ensure that the debtor's details are correct to avoid disputes regarding the validity of receipt or the passive legal standing of the notified party.
6.
Specify the unperformed obligation
Precisely describe the demanded performance, avoiding generic formulations that could create uncertainty regarding the breach or the subsequent termination.
7.
Check the validity of the signature and power of attorney
If the notice is signed by legal counsel, verify the existence of a written special power of attorney explicitly granting the authority to issue the notice and demand performance.
8.
Ensure the traceability of delivery
Use exclusively certified email (PEC) or registered mail with return receipt to guarantee conclusive proof of the delivery date and the running of the deadline.

Editorial oversight: Avv. Federico Papa·ICAM

Frequently asked questions

What is the consequence of omitting the warning regarding termination by operation of law?

Without the warning required by Art. 1454 of the Italian Civil Code, the notice will only serve as a formal notice of default and will not trigger automatic contract termination.

Can performance be demanded if judicial termination has already been requested?

No. Pursuant to Art. 1453 of the Italian Civil Code, once judicial termination has been requested, it is no longer possible to demand performance of the obligation.