Portal de Periódicos da CAPES

A Masterpiece at a Glance: Piero Calamandrei, Introduzione Allo Studio Sistematico Dei Provvedimenti Cautelari, Padova, Cedam 1936

2014; RELX Group (Netherlands); Linguagem: Inglês

1556-5068

Remo Caponi,

European and International Contract Law

It is a book review of a fundamental work in the field of Provisional Measures in Civil Procedure. The “Introduzione allo studio sistematico dei provvedimenti cautelari” (“Introduction to the Systematic Study of Provisional Measures”) was published by Piero Calamandrei in 1936. It normally takes a long time for a piece of legal scholarship to become a “classic”, as its capacity to mark a turning point in a certain field of research can only be assessed after a number of years. As far as Calamandrei’s masterpiece is concerned, a fully different story is to be told. The “Introduzione allo studio sistematico dei provvedimenti cautelari” was a classic from the outset, as its huge potential for influencing the course of research in the field of provisional measures could be assessed at first sight, as soon as the book came out from the print shop, simply comparing its table of contents with the previous (Italian and foreign) pieces of scholarship on this subject matter. The most important achievement of Calamandrei’s study lies in understanding provisional measures as means of ensuring the effectiveness of a “main” measure, (IT provvedimento principale, DE, so to speak, Hauptverfugung), be it a judgment on the merits, be it an enforcement measure. He argues therefore that provisional measures are not of necessity ancillary to the following enforcement of judgments, criticizing the solutions of certain codes of civil procedure, like the German Zivilprozessordung, where legal provisions about Arrest and einstweilige Verfugung are part of the Eighth Book on enforcement of judgments. He called such a link between provisional and main measure “instrumentality”(IT strumentalita) of provisional measures.Moreover, Calamandrei undertakes an in-depth analysis of the danger of suffering a serious or even irreparable harm during the time necessary for the ordinary proceedings to be carried out, which triggers the plaintiff’s need to ask for provisional measures. This is the so called periculum in mora in the Calamandrei’s terminology, the Verfugungsgrund in the German terminology relating to the einstweiliger Rechtsschutz, the cas d’urgence in the French terminology relating to the refere. He claims that there are two kinds of periculum in mora, which are fundamentally different from each other: the danger of “practical unfruitfulness” (infruttuosita pratica) and the danger of “lateness” (tardivita) of the future judgment. There is a danger of practical unfruitfulness if the plaintiff is facing the danger that the enforcement of a final favourable judgment will be made impossible or substantially more difficult by the defendant’s misconduct, most commonly dissi-pating assets, destroying evidence, etc. In other words, this is the danger that the defendant, pending the proceedings, may dispose of his/her assets or the property in dispute, so as to make impossible or substantially impracticable the execution of a final judgment. The danger of practical unfruitfulness is counteracted by the traditional conservative (interim) measures, like the Italian sequestro giudiziario or sequestro conservativo or the German Arrest, so as to allow the claimant to preserve the defendant’s assets or the property in dispute. There is a danger of lateness if the plaintiff may suffer an harm arising from the circumstance that his/her right is simply unsuitable to wait for satisfaction during the time necessary to obtain a favourable decision. In such cases the danger does not derive from defendant’s cynical obstructive tactics frustrating the enforcement of the final judgment, but from the delay in satisfying the claim, due to the duration of the ordinary proceedings. Just think of a maintenance creditor: He/she does need immediately money to survive and may suffer an irreparable damage even if where he/she is not facing the risk that the debtor, by transferring his/her assets makes himself/herself impecunious and the enforcement of the final judgment impossible or substantially more difficult. A second example is that of a company in need of liquidity to avoid insolvency. Maintenance creditors or companies at risk of insolvency cannot be helped by freezing measures aimed at preserving debtors’ assets and facilitating the future enforcement of favourable. They need provisional measures with the purpose of giving immediate satisfaction of their claims (“anticipatory” provisional measures, provvedimenti cautelari anticipatori).