Termination by mutual consent through conduct: the Court of Cassation confirms the need for an unequivocal intention of the parties

By judgment No. 5082 of 6 March 2026, the Italian Court of Cassation ruled on the issue of termination of a contract by mutual consent through conduct, reiterating that the dissolution of the contractual relationship may be inferred only from unequivocal conduct that is incompatible with the intention to keep the contract in force.

The case concerned a contract for the supply of a kitchen, entered into in 2012. After the purchaser had paid a deposit, the contractual relationship remained inactive for more than two years, without the purchaser proceeding with the acquisition of the property for which the furniture was intended.

Subsequently, the seller notified the purchaser that the kitchen was available for collection, while the purchaser argued that the contract should be deemed to have been terminated by mutual consent, with the amount paid being retained as a deposit.

The Court of Appeal held that the prolonged inertia of both parties — the purchaser’s failure to request delivery and the seller’s lack of immediate action — amounted to termination of the contract by mutual consent through conduct.

The Court of Cassation upheld this approach, reiterating a well-established principle: tacit termination by mutual consent does not necessarily require an express declaration of intent, but may result from the overall conduct of the parties, provided that such conduct is incompatible with the continuation of the contractual relationship.

According to the Supreme Court, what matters is the existence of convergent and significant conduct from which the parties’ loss of interest in the performance of the contract emerges in an objectively perceptible manner.

In the case at hand, the prolonged reciprocal inactivity, together with the failure to request repayment of the deposit and the absence of conduct consistent with the intention to perform the contract, was considered sufficient to demonstrate the parties’ common intention to dissolve the contractual relationship.

The decision is of particular relevance in contractual practice, especially in relationships characterised by long periods of inactivity or by conduct that has not been formalised.

The judgment confirms that termination by mutual consent through conduct requires an overall assessment of the parties’ conduct and cannot be inferred from individual elements considered in isolation.

From a more prudential perspective, the ruling also highlights the risk that situations of prolonged inertia may be interpreted ex post as tacit expressions of an intention to terminate the contract, especially where there are no actions consistent with the continuation of the relationship.

For this reason, the decision indirectly recalls the importance of clearly formalising the parties’ intentions in situations of suspension or uncertainty in the contractual relationship, so as to avoid the mere passage of time and absence of action acquiring contractual significance.

The judgment therefore forms part of the well-established line of authority according to which termination by mutual consent through conduct is the result of a concrete assessment based on the parties’ overall conduct and its incompatibility with the intention to keep the contract in force.