The Tribunale di Udine ‒allowing the applications filed by the Firm on behalf of the Client‒ has granted the provisional enforcement of an order for payment which had been challenged and which concerned the payment of freight, regardless of the opposite party’s attempt to have it set off by a credit resulting from the failed return of pallets. A road haulage company had attained an order for payment aimed at obtaining the consideration for the performance of a series of transports. The debtor challenged the order for payment, requesting that the claim be set off, since the haulier owed the debtor due to the failed restitution of pallets supplied by the debtor.
However, the Court deemed that the requirements for granting the provisional enforceability of the order subsisted, pending the proceeding, since it considered prima facie the opposite party’s set off request as having no grounds. In particular, on the one hand, the Judge accepted the carrier’s arguments, according to which there is no obligation, in the absence of an agreement, to return the packaging of the goods and, on the other hand, it also considered that it was not possible to set off a debt which is certain and payable, as the one for freight, with a debt which is not in any case certain and liquid, as the one deriving from the failed restitution of pallets.
The opposing debtor had in fact provided no evidence to support the latter, neither of the agreement based on which the carrier had allegedly undertaken to return the pallets (since the print out of the handling of the pallets unilaterally supplied by the debtor could not be considered as evidence), nor of the number of the pallets to be returned, or their value.
(Trieste Office – Federica Fantuzzi – 0039(0)40 7600281)
