The Formal Notice of the Italian Debtor
Are you a resident abroad seeking to recover a debt in Italy?
In this brief guide, we will explain how to use the Italian procedure of formal notice to the debtor to request payment of a sum of money from an individual or company.
Before we begin, please note that you can refer to this article to learn how to recover a debt in Italy.
What does “formal notice” mean?
In cases where an Italian debtor fails to meet the deadlines for fulfilling their obligation (e.g., payment related to a contract, invoice, etc.), the creditor, in the extrajudicial phase, can send a written request for prompt payment (formal notice letter). It is important to specify a deadline by which the debt must be honored. Through this targeted tool for debt recovery, the creditor can give legal value to the delay in payment by the debtor.
In the following paragraphs, we will analyze the elements that should be included in such a letter and the effects that may occur upon its receipt.
What are the prerequisites for the formal notice of the Italian debtor?
In addition to the delay in payment (temporary non-compliance), it is also necessary:
- Existence and relevance of an obligatory relationship
- The enforceability of the credit (it must not be subject to constraints or terms)
Normatively, the certainty of the credit, i.e., the legal certainty of the right, is not required. Therefore, formal notice can be issued even in the case of a disputed credit.
Regarding the need for liquidity of the credit (i.e., determining its amount), previously required, today it is observed that, given the lack of contrary rules, formal notice can proceed when the credit is not liquid. (Example: if the amount of the performance must be determined based on mere mathematical operations by the debtor, they must calculate and make the payment; or if it is not the debtor’s responsibility to calculate, they are required to pay the presumed due part, subject to further adjustment).
How to write the formal notice letter
In addition to notifying the debtor of their non-compliance, the formal notice letter generally provides a last opportunity to fulfill the payment obligation. The specified time period must not be less than 15 days. The creditor must provide specific information about their credit: the amount, the original due date, any late/penalty interest.
It should be noted that, for legal validity, the creditor (or their representative) must use a Certified Electronic Mail (PEC) or a registered letter with acknowledgment of receipt. As a formal communication, its validity is linked to the moment it is formally received and acknowledged by the recipient. Therefore, through simple forwarding with regular mail service, the formal notice to the debtor will not have any legal recognition and, consequently, will not be valid.
The necessary elements of the formal notice letter are:
- Indication and analytical description of the title necessary to request fulfillment (“cause” of the credit)
- Intimation to fulfill (with reference to the articles of the Italian Civil Code on the matter)
- Final deadline within which the debtor is granted to fulfill, starting from the receipt of the letter
- Notice that legal authority will be invoked in the event the debtor does not comply within the indicated timeframe.
Choosing to be assisted by consultants and lawyers experienced in drafting and sending the formal notice letter is useful to give further effectiveness to the communication and contribute to the successful outcome of the request.
Does the formal notice letter need to be signed?
Yes, it is necessary to sign the formal notice letter. The signature of the creditor (or their lawyer) is required to take responsibility for the declaration.
Thus, the signature is part of the essential elements; otherwise, in its absence, the legal effect desired by the creditor cannot occur, i.e., the interruption of the statute of limitations. The debt would then expire.
Which articles of the Italian Civil Code pertain to the matter?
In articles 1219 and following of the Italian Civil Code, we find the regulation of this matter; the first article establishes that “the debtor is placed in default by an intimation or written request.”
In the following articles, we find the consequences of the formal notice:
- Compensation for damages caused by the debtor’s non-payment (including losses suffered and lost profits, if proven)
- The extension of the debtor’s default even if there is a subsequent impossibility to perform the service (unless the debtor proves that the object of the relationship would have perished even at the creditor’s location)
Formal notice is not required in the following cases:
- When the debt arises from a wrongful act
- When the debtor has communicated in writing that they do not want to fulfill
- When there is a deadline (in cases where the performance must be carried out at the creditor’s domicile)
If the deadline expires after the death of the debtor, the heirs are not placed in default.
Another article related to the formal notice is article 1308 of the Civil Code, which describes two fundamental requirements:
- If there are multiple debtors, the formal notice does not extend to all but only to the one who receives it
- If there are multiple creditors, this procedure can also be invoked by joint creditors.
What effects does the formal notice have?
There are several legal consequences:
- Accrual of moratory interest (at the legal interest rate, if not established otherwise) even if there has been no damage (Article 1224 of the Civil Code)
- Obligation for the debtor to compensate for any damages (Article 1223 of the Civil Code)
- Interruption of the prescription period (Article 2943 c.c.) as it serves as a formal request for payment of the overdue debt. (Example: if you sent a formal notice letter for an invoice dated in 2011 and unpaid, from the date of receipt of the registered letter by the debtor, the 10-year prescription period restarts, and you can collect your credit until 2031).
After the formal notice to the debtor, what happens?
After sending the formal notice letter, various situations can arise, depending on the circumstances of the specific case. Specifically:
- Fulfillment of the obligation: the debtor chooses to honor the contractual obligation within the deadline indicated in the formal notice. In this case, the matter is resolved, and the contractual relationship can proceed according to its terms.
- Negotiation to try to agree on changes to the original contract. Alternatively, different payment plans may be found to resolve the situation.
- Contract termination: the creditor has the right to terminate if the debtor does not fulfill their obligation within the specified deadline or if an alternative agreement is not reached. Additionally, the creditor may seek compensation for any damages suffered.
- Legal action: if the above remedies are unsuccessful, the creditor can take legal action to assert their rights (e.g., file a civil suit for compensation or for compliance with the contractual obligation).
What is the duration of the formal notice?
The duration of the formal notice can change depending on the specific situation and related debt. As mentioned, usually, 15 days are indicated to allow the debtor to fulfill. But there may also be no predefined time: it is a request for settlement within a “reasonable period.”
Who can issue the formal notice?
The creditor can be an individual, a company, or a financial institution holding a credit to be enforced against the debtor. The person or company varies depending on the context and nature of the debt. For example, in the case of a personal loan, the creditor may be a financial institution or a bank. In the case of a commercial obligation, the creditor may be a service or goods provider.
Differences between formal notice and notice to perform
Both formal notice and notice to perform are two legal instruments useful for prompting the payment of a debt or the fulfillment of a contractual obligation. Despite the terms appearing synonymous, they have some differences in terms of meaning and practical application, depending on the legal context.
The formal notice to the debtor in Italy, as described in this guide, is a legal instrument through which a creditor (who still has an interest in fulfillment and maintaining the contractual relationship) requests the debtor to fulfill the performance within a specified period. The letter informs the debtor that they are in default and offers a last chance to rectify the situation before more serious legal actions are taken.
The notice to perform by the debtor in Italy, on the other hand, is always a formal act through which a creditor party to a contract or transaction requests a debtor to fulfill their contractual obligations within a specified period. However, once the deadline for payment requested from the non-compliant party expires, it allows the creditor to dissolve the contract (with accompanying damages protection) if this intent is indicated in the notice. In this case, there is no interest in keeping the contract alive; the effect of the notice is the resolution of the contract, so all its effects are void from the beginning (except for damage compensation).
Conclusion
We hope to have clarified the topic of formal notice of the Italian debtor. If you wish to have more information or need specialized advice to draft the formal notice letter, you can contact us, and our specialized Italian debt recovery lawyer will assist you effectively.
