10 June, 2019

Italian law to Buy or Sell a Real Estate/House in Italy – Lawyer in Italy: Italian Law Firm

In Italy it doesn’t happen quite often to find a negotiation that terminates very quickly with a direct sale of the real estate assets, as usually people prefer to get some pieces of advice by some expert consultants in order to agree upon every matter at stake before the deed of sale.

 

In the high majority of cases, the final deed of sale will be entered into before the Italian notary only after a special procedure made of many steps.

 

The many steps of this procedure constitute a complete procedure, which allows to enter into a final deed of sale.

 

The first step of this procedure is made up of an irrevocable proposal by the potential buyer, who will indicate a final term in order to allow the potential seller to accept or not the same proposal.

 

After that the proposal is received by the potential seller, he either will accept the proposal, or will formulate a counter – proposal or will simply deny the proposal. In case the potential seller simply denies the proposal, the procedure is closed while, on the other hand, if the potential seller formulates a counter – proposal, the procedure is still in force, which means that the potential buyer will have to accept or deny the counter – proposal.

 

In case the potential seller accepts the proposal or the potential buyer accepts the counter proposal, it would be possible to provide for an intermediate step which is called the preliminary agreement.

 

In the preliminary agreement the parties will agree upon terms conditions of the final deed of sale, which will be entered into before an Italian notary.
This happens because the preliminary agreement is only an intermediate step of the procedure, which terminates with the final deed of sale before an Italian notary.

 

Now we analyse what may happen in case of violation or false application of provisions set forth under Articles 1362 and 1363 of the Italian Civil Code, concerning what above mentioned and referred to a preliminary agreement. In a recent decision by the Italian Supreme Court, by means of the first ground of appeal the applicant complained about the violation or false application of articles 1362, 1363 c.c., and following, as well as omitted, insufficient and contradictory reasons for some decisive points of the dispute (Article 360 ​​of the Civil Code, paragraphs 3 and 5), in relation to the interpretation of the declaration of responsibility signed by  one party or the contractual synallagma between the parties and in relation to the documents produced by the other party, deducting:

 

  1. a) that the Court misinterpreted the declaration of responsibility signed by one party and
  2. b) that the rules of contractual hermeneutics, and in particular the articles 1362 and 1363 of the Civil Code, exclude the possibility of interpreting the aforementioned declaration in the various ways indicated by the appeal judge;
  3. c) that, having agreed to the parties expressly that the bills issued in favour of one party

 

they were bills of favour, the same ones have been rebuilt to the typical discipline of such bills, so it was the party obliged to pay for these with consequent delivery of receipted securities to the other party.

 

  1. d) that it is not plausible, moreover, that the other party has made to protest to his damage the first bill, to expire earlier, where the successive bills have been regularly paid by one party;
  2. e) that the literal tenor of the statement in question, further supported by the aforementioned facts, bears witness to the commitment made by the other party to hold today’s claimant unharmed from any payment or protest, where it is certain and not disputed by an adverse party that the second and third bills have been regularly paid by the same party and, therefore, returned to the other party as agreed.

 

The Italian Supreme Court stated that the reason was founded.

 

In this regard, it should be premised as the cd. draft of convenience or favour, characterized by the agreement on the basis of which the promoter takes on the role of issuer with the pact (representative of a natural negotii of the same agreement) that the borrower will not claim the fulfilment and will keep it free from any payment that was forced to carry out, excludes the existence of an underlying relationship between favour and easier, in the sense that the latter, with the creation of it, does not intend to assume an obligation to the former, but to third parties, with whom the favourite , thanks to the signing of the favour, can easily find credit through discount operations of the title.

 

Given the above, it is noted that the applicant has analytically reported, in the illustration of the present case, the tenor of the declaration of responsibility signed by one party, which reads “I, the undersigned, in declaring that the effects of bills of exchange amounting to L. 1,000,000 (one million) each issued by the other party – are in favour – and therefore I fully respond in civil and criminal form for any damage could be caused to the other party which failure to pay and protest.

 

This being the content of the statement in question, we observe how the appeal judge has stated in this regard:

 

  1. a) that “no doubt can exist on the legality of bills issued as a favour and any possible responsibility of the favourite towards the favour”;
  2. b) that “the problem is that of the interpretation of the declaration of responsibility signed by one party in order to establish any non-compliance in concrete that refers to him “;
  3. c) that “certainly incomprehensible are the methods of implementation and execution of obligations, however not specified by one party (expected) that could be different ways of execution of the tour: for example, the parties could have established that the bills were of from time to time to the respective deadlines paid by the other party. and then, receipted, reimbursed to him by one party. another hypothesis (being) that the parties had agreed that one party was directly paid, informed and promptly by the other party of the notice received by the bank, with consequent delivery to the other party of the receipted title “;
  4. d) that “all this is not (is) clear. And clarity would have been necessary “. Thus, arguing, said Judge is, first of all, incurred in the violation of the hermeneutical criterion that is based on the “literal sense of the words” (Article 1362, paragraph 1), having neglected to consider that the declaration signed by one party bears the express recognition that “the effects I say bills from L. 1,000,000 (one million) each issued by the other party – are of favour” you want the express assumption of the relative responsibility, where it says “and therefore I fully reply in civil and penal form for any damage it could derive to the other party. which missed payment and protests”.

 

Secondly, the same Judge, thus contravening the further hermeneutical criterion that imposes, “to determine the common intention of the parties, (to) evaluate their overall behaviour even after the conclusion of the contract” (Article 1362 CC, paragraph 2) , has failed to appreciate the fact, specifically deduced by the current applicant, that, after the protest of the first bill, the second and the third were regularly paid by one party,  and, therefore, returned to the same appellant, where this circumstance appears to be suitable, in order for its decisiveness, to constitute a useful interpretative tool for the “methods of implementation and execution of the obligations” assumed by one party.

 

On the basis of the literal tenor of the declaration above, which, therefore, even if not specified in the declaration itself, were wrongly considered by the Tribunal to be “certainly incomprehensible”.

 

With the second ground of appeal, complains the appellant violation and misapplication of the rules relating to compensation for damage to the image by the other party, as well as insufficient and contradictory reasons for a decisive point in the dispute, with reference to the claim for compensation for the damage, deducting:

 

  1. a) that, due to the breach of the agreement between the parties by one party. first and then his heirs, the other party he was protested, and his name appeared on the Bulletin of Protests, as proven by tables;
  2. b) that the damage to the image suffered by the same other party is, therefore, etiologically linked to the failure of the aforementioned;
  3. c) that the reasoning followed by the Court appears contradictory, which, on the one hand, affirms the possibility of liquidating the damage to the image on an equitable basis, whereas, on the other hand, rejects the proposed compensation claim as generic in the amount requested.

 

The reason is founded. The Judge of the Second Degree, in fact, rejected the request of the other party (and, therefore, the appeal proposed by the latter, thus confirming, for the effect, the contested judgment of first instance) also in terms of which refers to the “general nature of the same on the amount of damage claimed in L. 15,000,000” and, in particular, “because, if it is clear that the damage to the image cannot be liquidated that on an equitable basis, it is equally clear that the substantial material damage deriving from the breach of contract was to be quantified, on a consistent concrete basis or in the explicit provision in the document (damages transactively forecasted and liquidated ab initio) if not easily liquidated, or by testing those materially and concretely suffered “.

 

However, given that the non-recognition of “substantial material damage and derived from the breach of contract” has not been the subject of specific complaint here, it is noted that the rejection of the claim for “damage to the image” rests on a motivation completely inadequate and contradictory, since the Tribunal, as reported, expressly affirmed that the latter kind of damage “cannot be liquidated that on an equitable basis”, so that Judge, far from rejecting sic et simpliciter the question in question, due in fact to proceed with a similar liquidation, in application, however, of the principle that the promissory change, conferring ipso facto advertising to the insolvency of the debtor, is not intended to take on relevance only from a business-entrepreneurial point of view, but resolves a more complex affair, of undoubted discredit, both personal and patrimonial, so that, where it is illegitimately relieved and where it lacks a consequent, effective rectification, it must be considered entirely suitable to cause a pecuniary damage also in terms of the injury of the honour and reputation of the protested person, beyond and regardless of its possible commercial interests, to the extent that the illegitimate protest is recognized as infringing the rights of the person, such as those mentioned above, the damage, to be considered in re ipsa, will undoubtedly be compensated, not incurring on the damaged the burden of providing proof of his existence and being, therefore, the same injured legitimated to invoke in their favour the use, by the Judge, of the relative power of equitable liquidation.

 

By means of the final deed of sale before an Italian notary, it will be possible to enter into and execute the sale and purchase of a real state asset. However, the Italian notary shall verify that all terms and conditions agreed by the parties in the preliminary agreement have been fully respected and that there is no violation of any Italian law and regulation.

 

It goes without saying that the preliminary agreement between the parties can even rule only concerning some terms and conditions of the sale and purchase of the asset. In case nothing is agreed by the parties concerning some specific terms and conditions, the governing law, in this case the Italian law, will be automatically applied.

 

At any moment, the Italian notary can modify any term and condition agreed by the parties in case these terms and conditions are against the Italian law.

 

This is one of the key point of the procedure: the Italian notary will proceed in the interest of both parties in order to verify that everything shall be done in compliance with Italian law.

 

It goes without saying that any terms and conditions which will be entered into by the parties in the preliminary agreement shall be binding for both parties. Therefore, before entering into any terms and conditions, the parties shall verify everything in detail, which also means that the party will have to verify that what is written is what they really want.

 

Any misunderstanding could really be a problem: before the Italian notary, any part must respect and achieve what he or she subscribed and enter into in the preliminary agreement. Only in some particular cases, for example in some “force majeure” cases, one of the parties can ask for an amendment of the preliminary agreement. After the execution of the preliminary agreement, it would not be possible to turn the tables without any consequence: of course, the consequences will be the ones provided for under Italian law.

 

Pursuant to Italian law, the contract is in full force and effect as soon as the party, who receives the proposal, accepts it (to be more precise, as soon as the party, who made the proposal, receives knowledge of the acceptance of the proposal by the other party). This is a general rule which applies in the majority of cases; however, one clear exception is when the party who made a proposal indicated a final term for its acceptance: in this case, if the acceptance is made by the other party after the expiration of the final term, the contract shall not be in full force and effect.

 

In order to be considered valid, the proposal must contain all the compulsory elements of the contract. The Italian law provides for a clear specification of which one are the compulsory elements of each contract. About all the other elements, these ones could be regulated under Italian law but upon this compulsory element the agreement between the parties must be a definitive one.

 

The preliminary agreement must be in writing. Therefore, any verbal agreement could be kept into consideration, especially for the interpretation of the preliminary agreement, but in order to be fully binding the preliminary agreement must be in writing.

 

In particular, some special terms and conditions must be in writing and they must be fully clear: for example, about any final term, it has to be highlighted that the respect of the term is essential for the transaction. If there is no indication that the term is a final term, it may be considered as an indication by the parties and not as a compulsory element of the agreement.

 

Usually, the purpose of the preliminary agreement is to put an end of the negotiation between the potential seller and any other third parties: it means that the compulsory elements of the agreement have been agreed by the potential seller and the potential buyer, and consequently they simply need to agree upon other details of their agreement and to enter into the final deed before the Italian notary.

 

About the preliminary agreement, the potential seller can ask the potential buyer to put a term until which the proposal made by the potential buyer is irrevocable. It would mean that the potential buyer cannot withdraw from his/her binding proposal except in some “force majeure” cases without any consequences provided for under Italian law.

 

In case it is not provided that the proposal is binding until the final term, it means that it has to be considered as a simple proposal, which can be withdrawn at any time from the potential proposer.

 

Having said that the preliminary agreement must be in writing, it has to be highlighted that the parties can draft a preliminary meant without the compulsory assistance of any lawyer or notary; however, it goes without saying that, given the importance of the deal, any piece of advice made by any Italian lawyer or Italian notary can be very important in order to draft a complete preliminary agreement.

 

Only in some specific cases, the Italian law provides for the compulsive assistance by an Italian notary in order to draft also a preliminary agreement. These special cases have been provided for in the interest of many parties, especially when the building to be sold is not ready yet and it has to be built by a company.

 

It is very important to point out that, together with entering into the preliminary agreement, usually the parties provide for the payment of a certain sum from the potential buyer to the potential seller. It is essential for the parties to specify which is the purpose of this payment, because it can be just the payment of the first instalment of the price or it can be provided for by the parties for different reasons. It is clear that if the parties provide for a specific payment without indication of the reason and of the purpose of this payment, this element shall be evaluated in accordance with provisions set forth under Italian law.

 

Now we analyse what may happen in case of mortgages which do not succumb to the privilege referred to in paragraph 1 of Article 2775 of the Italian Civil Code. The Italian Supreme Court has ruled what follows hereinafter.

 

The appellant, in deducting the violation of art. 2645 bis c., Art. 2775 bis c., Art. 2748 c.c., paragraph 2, and art. 2825 bis c., argues that the art. 2775 bis of the Italian Civil Code, paragraph 2, identifies only two cases of mortgages that do not succumb to the privilege referred to in paragraph 1 of the same Article, namely those entered as collateral for the loan granted to the promissory buyer for the purchase of the property and those registered as a credit guarantee building within the limits of the quota that the promissory himself has taken on; though the art. 2825 bis of the Italian Civil Code, refer exclusively to the mortgages registered after the preliminary transcription, the prevalence of those registered in an earlier period is obvious, but always within the limits of the portion of debt that the promissory took, not having otherwise any role in the relationship between the lender and the builder.

 

According to the appellant, the contested decree contrasts, as well as with the orientation of the jurisprudence of legitimacy, which subordinates the prevalence of the mortgage to the takeover by the promisor of the debt contracted by the manufacturer, also with the spirit of the law, which aims to protect the promissory purchasers of buildings under construction in case of failure to execute the preliminary or bankruptcy of the promissory seller.

 

In the present case, therefore, since the share of the mortgage on the property promised for sale has not intervened, the general principle in art. 2748 c.c., paragraph 2, according to which the real estate privilege prevails on the mortgages registered also earlier, not being able to identify itself in the art. 2825 bis c.c., the different provision of law which, pursuant to the last sentence of art. 2748 c.p.c., paragraph 2, allows to derogate from this principle.

 

Preliminary to the examination of the complaints presented in the appeal is the examination of the legal premise from which moves the contested provision, according to which the privilege of the credit of the promissory buyer for failure to execute the preliminary contract prevails, pursuant to art. 2748 of the Civil Code, paragraph 2, on mortgages, even if the mortgage was registered before the transcription of the preliminary, except that these are mortgages related to mortgages granted for the purchase of the same property promised for sale or registered in favour of secured creditors pursuant to art. 2825 bis of the Italian Civil Code.

 

Only if, in fact, this premise was to be shared would it be necessary to assess whether or not they are able to criticize the consequent considerations on the basis of which the court has identified the prevalence on the special privilege due to the promissory purchaser of the mortgage registered as guarantee of the mortgage granted by the fund savings; if, on the other hand, that premise should be disregarded, the correction of the reasoning of the contested provision would be required, but the appeal should be rejected.

 

The aforementioned premise, from which the court begins (and whose validity is challenged by the other party), is in fact compliant with what was stated in the aforementioned precedent of this Court (Cassation No. 17197 of 2003), according to which, in fact, , pursuant to the provisions of art. 2748 c.c., paragraph 2, (for which creditors who have privilege on real estate are preferred to mortgage creditors, if the law does not provide otherwise), also the special property privilege, provided by the aforementioned art. 2775 bis of the Civil Code, prevails with respect to the mortgages on the same building, even if transcribed before the transcription of the preliminary contract from which the privilege arises, not revealing the “registration” (or “transcription”) nature of such privilege, since this does not it is sufficient to make the principle of the prevalence of rights applicable in such cases according to the order of the transcripts and registrations from which property advertising is regulated.

 

The order that has resolved the solution of the question to the joint sections considers that the conclusions to which the aforementioned sentence no. 17197 of 2003 did not appease the debate that had already arisen in the doctrine regarding the correct interpretation to be given to the provisions dictated by the code to protect the promissory purchaser of properties (introduced, as is known, with the Decree of December 31, 1996, n 669, converted with amendments by Law dated 28th February 1997, No. 30). Debate which, rather, has been re-enacted. Then, the deepening of the following points is asked:

 

  1. a) the privilege granted to the promissory purchaser does not relate exclusively to the cause of the claim, but necessarily presupposes the transcription of the preliminary contract, to which it therefore seems reasonable to assign, by virtue of its constitutive efficacy, the function inherent in it, to resolve the possible conflicts between holders of rights subject to the same advertising regime;
  2. b) because in the graduation required by art. 2780 of the Italian Civil Code, the privilege in question is placed after those that assist the receivables for water concession and indirect taxes, which cannot be exercised in prejudice of the rights previously acquired by third parties on the same properties, the prevalence of this privilege on registered mortgages previously it would make it impossible to establish the placement order of the credits;
  3. c) said prevalence would also be scarcely rational, since the previously registered mortgages are certainly opposable to the purchaser, in the event of completion of the final purchase contract of the property;
  4. d) the art. 2825 bis of the Italian Civil Code, providing exceptionally that, in the event of acceptance of the mortgage by the promissory buyer, the mortgage registered as a guarantee prevails over the previous transcription of the preliminary contract, suggests, a fortiori, the operation of the same criterion in the event of a subsequent transcription of this contract, finding application in this case, the general principles concerning real estate advertising.

 

In conclusion, the question submitted to the United Sections consists in determining whether, for the purpose of distributing the proceeds of the sale, arranged in bankruptcy, a property already promised for sale by the bankrupt with a preliminary contract transcribed, the privilege that, according to art. 2775 bis c.c., assists the credit of the promissory buyer for the non-execution of the preliminary prevail (or not), pursuant to art. 2748 c.c., paragraph 2, on the mortgages registered on the same building prior to the registration of the preliminary contract.

 

The transcribability of the preliminary, not provided for by the original text of the civil code, due to the merely obligatory nature of this contract, was introduced by the D.L. December 31, 1996, n. 669, art. 3, (converted with amendments from the 28th of February 1997, n. 30), which modified title 1 ^ of the 6th book of the code, inserting the art. 2645 bis c.c ..

 

This allows the possibility to proceed with the transcription of preliminary contracts, even if subject to conditions or relating to buildings to be built or under construction, provided they: a) have as their object the conclusion of some of the contracts referred to in numbers 1, 2, 3 and 4 of the art. 2643 cc .; b) they result from a public deed or a private deed with authenticated or judicially certified underwriting. The purpose of the regulation is to protect the promise, who, at the time of stipulation of the preliminary or in any case pending the conclusion of the final contract, has paid all or part of the amount due, against the possibility that the promoter ‘fulfilment of the obligation assumed, by putting in place acts of disposal of the promised asset, such as to make the subsequent transfer of the property impossible.

 

It starts from the acknowledgment that, in commercial practice, the stipulation of a preliminary contract is now an almost unavoidable phase of the negotiation process that leads to the transfer of real property rights, which is mostly justified by the need for the parties to provisionally consecrate the agreement reached, in order to allow, in view of the conclusion of the final contract, the verification of the exact consistency of the property, its compliance with the town planning regulations and tax charges related to the transfer.

 

This practice is sometimes reflected in the early delivery of the property and, more often, the payment of one or more advances on the agreed price, which is justified, in the case of sale of assets still to be built or under construction, in the converging interests of the seller to self-financing by the early payment of the fee and the purchaser to obtain a more advantageous price through the project purchase.

 

In the validity of the original text of the civil code, the impossibility of proceeding with the transcription of the preliminary, due to the inability of such contract to determine the transfer of the real right, exposed the promise, who had fully or partially fulfilled his obligation, at the risk of the default of the counterparty, having to succumb to possible acts put in place by the latter, or to acts committed by third parties to the detriment of the same counterpart; the transcription of these deeds, if it occurred before the final contract, made it impossible to stipulate it, precluding also the acceptance of a possible judicial request pursuant to art. 2932 c.c ..

 

To this risk, attributable to the normal contractual alias, it was added, in the event that the promissory seller was an entrepreneur, that specific to the business activity, which considerably increases the danger of the assault of the assets by third parties, up to ‘extreme hypothesis of failure, which, allowing the trustee to dissolve from the contractual obligation (as occurred in the case under discussion), compels the promissory buyer to slip into the liabilities to obtain the return of the sums paid and then subject to the rules of the competition, with little hope of obtaining the satisfaction of his right, having regard to the unsecured nature of the claim.

 

To avoid these problems (which, in the past, could only be resolved through the timely transcription of a specific application for enforcement), the possibility of protecting their right to purchase directly by transcribing the preliminary contract is now recognized.

 

The effectiveness of this advertising fulfilment is governed by the second and third paragraphs of art. 2645 bis of the Italian Civil Code, which provide that, within one year from the date agreed between the parties, and in any case within three years from the registration of the preliminary, follow the transcription of the definitive contract or another deed which is in any case the preliminary contract, or of the judicial request pursuant to art. 2652 of the Civil Code, paragraph 1, no. 2, the effects of such transcription or of that of the sentence that accepts the request for the specific performance of the preliminary contract retroactively up to the date of the transcription of the latter, prevailing over the transcripts and inscriptions executed at a later date against the promising alienator.

 

This effectiveness has been defined as booking the typical effects of the transcription of the definitive contract, and consists in the fact that, if followed by the latter, the transcription of the preliminary renders unobjectionable to the promissory buyer all the registrations or transcripts carried out of the promisor.

 

However, it is controversial whether the reservation effect renders the promissory purchaser unenforceable only the advertising formalities carried out subsequently against the promising seller by virtue of titles he wanted, or has general scope, also extending to the transcripts of foreclosures or seizures and to the registration of mortgages. court.

 

With reference to the hypothesis of bankruptcy of the promisor, the L. Fall., Art. 72, paragraph 3, also introduced by the D.L. n. 669 of 1996, art. 3, in fact excludes the prevalence of the preliminary, confirming the faculty of the trustee to dissolve the contract, pursuant to paragraph 2 of the same article, and providing that in the exercise of this option the buyer has the right to assert his credit in the passive, without being compensated for the damage, and enjoys the privilege referred to in art. 2775 bis c.c., provided that the effects of the transcription of the preliminary contract have not ceased before the date of the declaration of bankruptcy.

 

Approximating the question under consideration, it should be remembered that, in addition to the effectiveness of the reservation, the D.L. n. 669 of 1996, art. 3, has attributed to the transcription of the preliminary contract a peculiar constitutive effectiveness, introducing in the title 3 ^ of the book 6 ^ of the civil code, in section 3 ^ of chapter 2 ^, the art. 2775 bis of the Italian Procedure Civil Code, which, in order to protect the claims of the promissory purchaser arising from failure to execute the preliminary contract, provides in paragraph 1 that they “have special privilege on the real estate object of the preliminary contract, provided that the effects of the transcription are not ceased at the time of termination of the contract resulting from a deed with certain date, or at the time of the request for a resolution of the contract or order to pay, or at the time of registration of the attachment or at the time of intervention in the performance promoted by third parties.

 

The transcription of the preliminary therefore raises, in favour of the promissory claims, a special property privilege, subject to the condition that the effects of the transcription are still in place at the time when the events that cause the credit occur. This privilege is placed at n. 5 of the order established by art. 2780 of the Civil Code, in particular after those assisting the receivables of the State for water concessions (article 2774 of the civil code) and indirect taxes (article 2772).

 

Article. 2775 of the Civil Code, paragraph 2. Me provides that it “cannot be opposed to mortgage-backed creditors related to loans granted to the promissory buyer for the purchase of the real estate as well as to mortgage-backed creditors pursuant to art. 2825 bis c.c. “; that is, to creditors who have registered mortgages on a building or condominium complex, also to be built or under construction, to guarantee the financing of the building intervention pursuant to the Legislative Decree of 1 September 1993, n. 385, arts. 38 et following ones: this mortgage, moreover, prevails over the prior transcription of the preliminary contract “limited to the portion of debt deriving from the aforementioned loan that the promissory purchaser has taken on with the preliminary contract or with any subsequent subsequent deed pursuant to art. . 39, paragraph. 3, of the aforementioned legislative decree n. 385 of 1993 “, with the further clarification that” if the takeover results from a subsequent act, this is noted in the margin of the transcription of the preliminary contract “.

 

The latter provision aims to reconcile the protection of the third buyer with that of third parties who have granted loans for the purchase or construction of the property promised for sale, in accordance with the purposes pursued by the D.L. n. 669 of 1996, art. 3, which consist inter alia in promoting the construction and purchase of the first dwelling house.

 

In the first part, it seems to refer to the hypothesis (rather marginal) in which the promissory seller has given his consent before entering into the definitive contract to register a mortgage on the property promised for sale, as a guarantee for the credit deriving from it. from a loan granted to the promissory purchaser: otherwise, in fact, it would not be explained how the latter can grant a mortgage on a good of which he has not yet become owner.

 

In the second part, however, the rule refers to the mortgages granted by the promissory seller to guarantee credits deriving from mortgage loans granted by banks granting medium and long-term loans, guaranteed by a first mortgage on real estate, or by mortgages of a further degree in the cases allowed by the Bank of Italy; in this case, the prevalence of the mortgage is subject to the condition that the promissory buyer has taken on the related debt, in the same preliminary or subsequent deed noted in the margin of the transcription, and operates limited to the portion of the property promised for sale.

 

This condition is based on the consideration that the enforceability to the promise of the mortgage registered after the preliminary is justified only in the case of taking the loan, as he becomes part of the relationship deriving from the loan, benefiting from the related instalment for the payment of the price; if, on the other hand, purchases are made without payment, paying the price directly to the promisor, the promissory remains unrelated to the relationship between financier and financed, with the consequence that the mortgage, registered after the transcription of the preliminary, cannot be opposed.

 

The privilege in question prevails, therefore, pursuant to art. 2645 bis of the Civil Code, the registered mortgages at a later date to the transcript of the preliminary, excluding those provided by. 2825 bis of the Civil Code, as this provision exceptionally establishes the prevalence of mortgages related to mortgages sold to the prospective buyer, as well as those relating to mortgages disbursed to the promissory seller, the prospective buyer has agreed to bear.

 

The almost unanimous orientation became established in the jurisprudence of about claims that the decision of which hath been said are still destined to give way in the nose of the competition with the privilege due to the prospective buyer.

 

It starts from the observation that the competition between privileges and mortgages would be governed exclusively by art. 2748 c.c, paragraph 2, the art. 2644 of the Civil Code, which governs, however, the conflict between pre-emption causes and beneficial rights; this place, it states that the principle of the prevalence of the privileges, laid down by the aforementioned arrangement, it might be departed from only in the presence of a given clear and unambiguous regulatory, not apparent Neither art. 2775 bis of the Civil Code, (which, in so far as it makes the birth of the privilege of the prospective buyer to the transcript of the preliminary, not introduce new elements compared to other cases provided by law), nor art. 2825 bis c., (Which, referring only to mortgages registered after the transcription of the preliminary, would not be applicable to those registered on an earlier date).

 

The address in question reflects the opinion expressed by the first commentators of the D.L. n. 669 of 1996, which had considered the unsurpassed normative data emerging from the literal of Article 2748 c.c., paragraph 2, and art. 2825 bis of the Civil Code, thus excluding the possibility that the recorded mortgages in the time before the registration of the preliminary contract could override the privilege of assisting the credit of the prospective buyer.

 

To the objection that the mortgage prevails on the rights of third parties in the era transcribed success goes to enrolment, they replied that it is because the relationship between the causes of pre-emption and real rights is governed by the principle of prior in tempore, in potior jure, exalted, in the case of real estate, the priority of advertising; in this case, however, there is no conflict between the right of the promise to obtain the specific execution of the contract and the third party’s mortgage on the same object of the preliminary, but a conflict between the special privilege of the promise (consequent the termination or dissolution of the preliminary contract) and a mortgage on the same property: it would be a conflict between the causes of first refusal, the prevalence of which would be governed by the law based on a principle other than the chronological priority.

 

This would explain, among other things, because the mortgages on a date prior to the transcript of the preliminary are opposable to the buyer in the event of signing the final contract and are unenforceable for failure of the preliminary.

 

In line with this, the derogation from the principle of primacy of the privilege, as required by art. 2748 of the Civil Code, paragraph 2, for the enforceability of the mortgage to the secured creditor, cannot be deduced by art. A commercial code.: 2825 this provision, in fact, has nothing to do with the privilege of art. 2775 bis of the Code, provided for the case of non-execution of the preliminary, as it is limited to regulate the effects of the building mortgage on the transcription of the preliminary that is regularly performed; Article. 2775 cc bis, paragraph 2, also limiting the prevalence of mortgages registered after the registration of the preliminary to those granted to guarantee loans taken out for the construction or purchase of the property, it would mean that, outside of these; these mortgages are intended to cede in the contest with the privilege, and would therefore be applicable, a fortiori, to the mortgages entered on an earlier date.

 

The objection that this opinion, favouring the promissory buyer to the detriment of the interests of mortgage creditors, would have had a negative impact on the relations between the construction companies and the credit companies, discouraging them from granting loans for the construction of buildings, in contrast with the purpose that the law intended to pursue, it is replied that the sense of the new discipline also consisted in making the banking sector accountable, deterring it from excessive confidence in the provision of land credit. In fact, too often, banks, when granting loans for the construction of buildings, rely more on the value of the assets granted for the purpose of restitution. as a guarantee that on the overall soundness of the borrowing company, trusting that it can easily proceed with the recovery of the claim even in the event of bankruptcy of the same, with evident prejudice for the reasons of the other creditors.

 

On the other hand, the posting of mortgage loans to that of the promissory purchaser would oblige them to verify in advance the company’s ability to meet its obligations, making use of those instruments of control which they have in a wider and more incisive measure than any other creditor.

 

From a different point of view, it is recognized that, once obviated, by predicting the transcribability of the preliminary, the danger that the right to transfer of the property is thwarted by acts performed by the promising seller or acts of aggression of his assets placed in to be a third party before the conclusion of the definitive, the assignment of a privileged rank to the promissory credits arising from the non-execution of the cones, ratio results in excessive protection, at least with reference to the hypothesis in which, although execution in the specific form of the obligation to contract, he has opted for the compensation protection.

 

In any case, even those who are willing to admit that the prevalence of privilege results in an unjustified unequal treatment of creditors who have registered a mortgage prior to the transcription of the preliminary, believe that this inconvenience can be resolved exclusively through a declaratory of unconstitutionality of the law in question, or through a clarifying intervention of the legislator.

 

On the other hand, the most recent doctrine considers that the question can be solved also in an interpretative way, using the principles on which it is based. bases real estate advertising and a plurality of elements emerging from the same discipline in this area. It underlines the “inscription” or “transcriptional” nature of the privilege in question, whose competition with the mortgages registered on the property promised for sale must be considered regulated by art. 2644 of the Civil Code, since it was not the privilege granted exclusively because of the cause of the claim, but being conditional on the transcription of the preliminary contract and its continuing effectiveness.

 

In support of this orientation, the anomalies that the opposing thesis would introduce into the system of pre-emptive cases were also pointed out, observing on the one hand that in case of conclusion of the final contract the mortgages registered after the transcription of the preliminary are opposable to the purchaser , on the other hand that in the order of privileges the one provided for by art. 2775 bis of the Italian Civil Code, is placed after those pursuant to art. 2772 and 2774 of the Civil Code, which are not exercisable as a result of the rights previously acquired by third parties.

 

Finally, the serious abuses that could lead to the strict application of art. 2748 cit., Which would allow the seller to remove the property from the guarantee of its mortgage creditors, through the simulation of a preliminary sale with a promissory compliant, which could be followed by the resolution of the contract Lo, with the consequence that, in the context of forced execution, the restitution and compensatory claims of the promissory should be satisfied with precedence over those of the mortgage lenders.

 

The same conclusions reached an authoritative doctrine on the basis of a different argumentative path, which moves from the qualification of the preliminary sale and sale to mandatory effects, from which the promisor has an obligation to give and the assertion of autonomy, of this contract with respect to the definitive, reconnecting to its transcription the typical effectiveness referred to in art. 2644 c.c., to argue that this effectiveness also extends to the privilege that assists the claims of the promissory purchaser, whose concurrence with the mortgages entered on an earlier date must therefore be governed by the principle of chronological priority.

 

The most striking aspect of this doctrine can be found in the attribution to the promissory purchaser of a jus ad rem (not a mere jus in person) and in the reconditioning of the relationship between preliminary and definitive (not as a relationship between two distinct and autonomous contracts, each with its own cause) to the German model of the distinction between titulus and modus adquirendi, with the consequence that the stipulation of the definitive does not involve the absorption of the preliminary Nor does the vices that affect it, irrelevant, which are suitable to affect, irrelevant through the termination of the contract to which they belong, on the same transcription of the final contract.

 

The proof would be constituted precisely by the transcribability of the preliminary, whose effect of enforceability is justified by the nature of the right that derives from it for the promissory purchaser, while the temporal limitation of this effect would be justified by the mandatory effectiveness of the contract.

 

On the basis of all the foregoing, it is now possible to proceed to the solution of the question, immediately anticipating that the joint sections intend to disregard the previous orientation expressed by the aforementioned Cass. n. 17197 of 2003, through a discussion concerning the general problem of the rule of conflict between pre-emptive causes, beyond the specific hypothesis (which will also be said) of the land credit, governed by Articles. 2775 bis of the civil code, paragraph 2, and art. 2825 bis c.c ..

 

On the other hand, the most recent doctrine considers that the question can be solved also in an interpretative way, using the principles on which it is based. bases real estate advertising and a plurality of elements emerging from the same discipline in this area. It underlines the “inscription” or “transcriptional” nature of the privilege in question, whose competition with the mortgages registered on the property promised for sale must be considered regulated by art. 2644 of the Civil Code, since it was not the privilege granted exclusively because of the cause of the claim, but being conditional on the transcription of the preliminary contract and its continuing effectiveness.

 

In support of this orientation, the anomalies that the opposing thesis would introduce into the system of pre-emptive cases were also pointed out, observing on the one hand that in case of conclusion of the final contract the mortgages registered after the transcription of the preliminary are opposable to the purchaser , on the other hand that in the order of privileges the one provided for by art. 2775 bis of the Italian Civil Code, is placed after those pursuant to art. 2772 and 2774 of the Civil Code, which are not exercisable as a result of the rights previously acquired by third parties.

 

Finally, the serious abuses that could lead to the strict application of art. 2748 cit., Which would allow the seller to remove the property from the guarantee of its mortgage creditors, through the simulation of a preliminary sale with a promissory compliant, which could be followed by the resolution of the contract Lo, with the consequence that, in the context of forced execution, the restitution and compensatory claims of the promissory should be satisfied with precedence over those of the mortgage lenders.

 

The reasoning starts from the premise that the art. 2748 of the Civil Code, when the second paragraph establishes that creditors with privileges on real estate are preferred to mortgage creditors “if the law does not provide otherwise”, refers to an exception not necessarily contained in an explicit precept, but which may or must be identified in the legal system as a whole, through reading and normative interpretation that tends to harmonious coordination of the specific institution in discussion with the whole system; so as to avoid the application of sectorial hermeneutics which, although compatible with the microsystem in which the provisions are inserted, end up with the screeching with respect to the complex of matter in which the rules themselves have their effect. Such an interpretative effort is imposed with even greater commitment when (as in this case) the rules examined do not belong to the original codicistic approach, but are the result of a subsequent legislative interpolation, moved by social and economic needs gradually emerged into the legal reality of businesses.

 

Expressed exceptions to the rule of art. 2748 c.c., paragraph 2, are to be found in art. 2772 of the Civil Code, paragraph 4, and in art. 2774 of the Civil Code, paragraph 2: the privilege that assists the State credits for indirect taxes or for water concession fees cannot be exercised in order to prejudice the rights that third parties previously acquired on the buildings. Therefore, an inspired derogation from the different rule of prevalence based on the date of registration or registration.

In our case, an express provision derogating from the precept established by the first part of art. 2748 of the Civil Code, paragraph 2, does not exist, but, as we shall see, the organic analysis of the entire regulatory framework governing the matter makes it possible to affirm that creditors bearing the special privilege of which we are dealing are not preferred to creditors with a previously registered mortgage at the emergence of the privilege itself, according to a reconstruction that, as we have said, disregards the specific hypothesis (governed by Article 2275 bis of the Civil Code, paragraph 2, in relation to Article 2825 bis of the Civil Code) of the privilege that assists the credit for the financing of the building intervention.

 

First of all, it should be noted that the privilege that assists the credit of the promissory purchaser, following the (possible) failure to execute the preliminary contract transcribed, does not relate solely to the cause of the claim (as prescribed by the first part of Article 2745 of the Civil Code) but its constitution necessarily presupposes the transcription of the preliminary contract pursuant to art. 2645 bis c.c .; thus falling within the category of privileges whose constitution, as permitted by the second part of art. 2745 of the Civil Code, is subject to a particular form of advertising.

 

Moreover, it assists the claim provided that the effects of the aforementioned transcription have not ceased at certain times (that of the termination of the contract, or of the judicial request for the resolution, or of the registration of the attachment, or of the intervention promoted by thirds).

 

Such privilege (like many others introduced over time by the legislator in specific sectors) is added to the special property privileges provided for by the code in Articles from 2770 to 2775, but it differs from it because it is not a place, like these, to protect public interests, but rather to protect the merely private interest of the promissory buyer.

 

It should be recalled in this regard that the original special codicistic privileges constitute the legacy of the old privileged mortgages, which were preferred to normal mortgages by reason of the particular public nature of preferentially protected interests. Hence the rule of conflict according to which such privileges prevail over mortgages, even if registered before their emergence. Today consecrated rule of the art. 2748 c.c, paragraph 2, and already contained in the art. 1953 of the code of 1865 (though without the express reservation that foresees the current normative text).

 

The most authoritative doctrine explains that the path chosen by the legislator in art. 2748 of the Civil Code, paragraph 2, is the most consistent with the nature of the privilege, which, seeing beliefs that you normally incur on the process of production or enhancement of a thing, must necessarily be placed before the mortgage.

 

In other words, the reason for most of the privileges is to be found in the particular economic inherence of some credits to the burdened thing, which also explains the preference of the preferred creditors on the creditors provided with collateral: since the latter acquire a right to the value of exchanges or of the thing, are necessarily postponed to those who, through the provision of work or utility energies from which the credit arises, have contributed to the creation, preservation or increase of the same value.

 

The same doctrine also warns that these considerations are relevant for the interpretation of the concrete application of positive norms and that it would be absurd to exclude from the list of privileges the figures that have the presupposition in forms of publicity, only because they do not apply the brocardo according to which it privileges non ex tempora estimantur (the rule transfused in Article 2748 of the Civil Code, paragraph 2).

 

In this way, it should be noted that, on the one hand, the status of “privilege” does not necessarily entail the application of the principle that it prevails over the previously registered mortgage and that, on the other hand, the application of ordinary advertising rules it does not allow to exclude the particular qualification of “privilege” to the type of pre-emption treated.

 

The privileged nature of which is discussed expounds its effects in a situation mirroring the opposite of the aforementioned one. It does not assist a credit that affects the process of production or enhancement of the thing (rather, this incidence belongs to the credit of the lender of the work), but the credit of the promissory purchaser who acquires the right to exchange the thing, and its constitution is subordinated to a specific advertising charge, just as its existence is linked to the persistence of the effects of advertising.

 

It follows that, relative to it, there is no rule of the prevalence of privileges on mortgages, but that of the prior tempore potior in jure that pervades the whole system of advertising, making it possible to obtain the mortgage transcribed before the establishment of the privilege should prevail on the latter.

 

Some authors have noted the assimilation of such type of pre-emption to the legal mortgage, highlighting that, in the subject matter, it would have been preferable that the legislator had foreseen not a special privilege, but a legal mortgage; so much so that in other normative experiences (such as the French one: cf. Article. 2106 of the Civil Code), it is envisaged that special liens on real estate are to be opposed to other creditors only after they have been registered in the mortgages’ conservatory and in the manner provided for that form of advertising.

 

The characteristics of the privilege in question take on a decisive importance, distinguishing it from other special property privileges, whose birth is not conditioned to an advertising fulfilments having constitutive efficacy, as from the other registration privileges, which have as their object movable property; with respect to the latter, obviously, the problem of the competition with other pre-emptive causes of transcriptional nature does not arise, but for the case where more privileges are conceded, the law expressly provides that the conflict must be resolved according to the transcription priority rule (Article 2762 of the Civil Code); for the former, on the other hand, even if the rule according to which the privilege prevails over mortgages, the law establishes, in reference to cases in which the pre-emption is granted for a non-individual interest, that it cannot be exercised to the detriment of the rights that third parties previously acquired on real estate (these are the aforementioned articles 2772, paragraph 4, and article 2774 of the civil code, paragraph 2).

 

A fortiori, therefore, must be affirmed that a privilege granted according to an individual interest, whose birth is subject to the fulfilments of an advertising formality, is destined to yield, in the competition with pre-emptive causes previously registered.

 

In this order of ideas it is reductive and freed from the systematic vision of the institution to make a formal application of the conflict rule dictated by art. 2748 cc, paragraph 2, to categorically admit that any kind of special property privilege (including that provided in favour of the promissory buyer) prevail on the mortgage (any mortgage, not only that which I see the credit of the lender), although this has been registered before the birth of privilege.

 

At this point it is necessary to make some clarifications with regard to a series of reconstructions that have been made to achieve the same result that is reached here.

 

First of all. it is necessary to clarify that the rule of conflict between privileges or the previously registered mortgage cannot be found in art. 2645 bis c.p.c., paragraph 2, which establishes; the prevalence of the definitive contract on the transcripts and the registrations made against the promising seller after the transcription of the preliminary contract.

 

Expression, this, of the already mentioned booking effect of the transcription of the preliminary contract and implementation of the general rule of the art. 2644 c.c.

 

Not even the reference to the specific rule of conflict between the pre-emptive causes contained in art. 2775 bis, paragraph 2, which provides for two categories of creditors to whom the privilege granted in favour of the promissory acquirer is not enforceable: a) those guaranteed by mortgages relating to loans granted to the promissory purchaser for the purchase of the real estate; b) those guaranteeing a mortgage pursuant to art. 2825 bis c.c ..

 

As for the hypothesi the sub a) there is no need to dwell, although it must be noted that all commentators have noted the obscurity of a provision that would seem to admit that the promissory, as a result of the preliminary, can register a mortgage to guarantee his debts on an asset not yet owned by him, by way of derogation from art. 2822 of the Italian Civil Code In fact, in the hypothesis outlined, the conflict is resolved in the sense that the mortgage in favour of the lender prevails over the privilege in favour of the promissory purchaser, regardless of the fact that the collateral was registered before or after the establishment of the privilege.

 

As for the hypothesis sub b) – the one that most interests us – we must take into account the provision of art. 2825 bis c., Referred to in art. 2775 bis of the Italian Civil Code) provides (as has already been seen previously) that the mortgage registered on the building (constructed or built) to guarantee the financing of the building intervention (pursuant to Legislative Decree No. 385 of 1993 , articles 38 et seq.) prevails on the previous transcription of the preliminary contract, limited to the portion paid by the promissory buyer.

 

In other words, although registered after the transcription of the preliminary, such a mortgage prevails over the privilege granted to guarantee the receivables claimed by the promissory buyer towards the promissory seller. Thus, the problem of the splitting of mortgage credit assisted by a mortgage that had arisen in the previous jurisprudence and implemented the favour of the legislator (of which before has been said) for the credit incident on the process of production or enhancement of the thing.

 

Now, the related provisions constitute a further subsystem within the subsystem of the transcription of the preliminary contract. In the sense that the art. 1775 bis of the Italian Civil Code, paragraph 2, does not deal with the general problem of the relationship between privilege and favour of the promissory and mortgage registered against the promisor, but only of the relationship between privilege and mortgage connected to the land loan transaction, placing the unenforceability of the privilege to two specific categories of mortgage creditors.

 

It follows that the reference to these provisions is not useful to found the more general rule of conflict of which we have said and that, above all, the provisions themselves cannot be indicated Nor as the derogation from the principle of art. 2748 cc, paragraph 2, (by those who believe that the unenforceability of the privilege to subsequent mortgages presupposes, a fortiori, the inappropriateness to the previous ones), as well as confirming it to the same principle (by those who believe that the legislator has wanted to limit the unavailability of privileges or only to subsequent mortgages and not to the previous ones).

 

The interpretation offered up to now, in bringing back the special regulation in the system, resolves also a series of discrepancies indicated by the doctrine that has opposed the opposite solution.

 

To affirm the prevalence of the privilege on the mortgages registered before the transcription of the preliminary would, in fact, result in an unjustified unequal treatment depending on whether the preliminary has or does not execute: such mortgages, which in case of conclusion of the final contract are opposable to the purchaser ( on the basis of the principle of anteriority established by Article 2644 of the Civil Code), in the event of non-fulfilment of the obligation to contract, it would become unenforceable to him, as a result of the privilege arising from the same transcription of the preliminary, with obvious subversion of the rule set by the last mentioned provision.

 

Having also taken into account another very practical but not at all irrelevant consideration: that is, that the promisor, at the moment in which he stipulates the preliminary, is aware of the existence of the mortgage inscription on the good he is buying; otherwise, the creditor (in our case the lender) who has from the beginning of the operation registered mortgage to guarantee his credit on the same property would end (following the opposite thesis) with the see his credit postponed with respect to an indefinite series and indefinable credit of promissory buyers (with privileged credits) in the sale of the same asset.

 

So much so that the alarm launched by those who noted that the alleged prevalence of privileges on mortgages prior to the transcription of the preliminary contract could be a source of serious abuse and fraudulent agreements between the promissory seller and the promissory buyer, is unfounded aimed at nullifying the possibility of satisfying the claims secured by the aforementioned mortgages.

 

The owner of a property burdened by a mortgage could, in fact, easily steal the asset from the guarantee of its own creditor, simulating a preliminary sale with a compliant subject, declaring to have received the full consideration and then resolving the contract, as Forced execution, the credit of the promissory purchaser for the return of the paid price would be placed with a portion degree compared to that of the creditor, which would therefore remain dissatisfied.

 

Finally, since the privilege in question is placed in the last place in the order established by art. 2780 cc, (and therefore after those recognized to the credits of the State for concessions of water and indirect taxes, which cannot be exercised in prejudice to the Mortgages previously registered by third parties), the acceptance of the different opinion would determine a vicious circle, making it impossible Establish the order of pre-emptive cases in the case of the participation of the privileges referred to in Articles 2772 and 277 of the Civil Code, with that pursuant to art. 2775 bis c., And with previous mortgages.

 

In conclusion, the following principle must be stated: the special privilege on the real estate, which assists (pursuant to Article 2775 bis c.c.) the claims of the promissory purchaser resulting from the failure to execute the preliminary contract transcribed pursuant to art. 2645 bis c.c. as subordinated to a particular form of constitutive advertising (as provided for by the last part of article 2745 of the civil code), it remains subtracted from the general rule of privilege on the mortgage, sanctioned, if not otherwise provided for in art. 2748 c.c., paragraph 2, and is subject to the ordinary principles regarding the publicity of the documents.

 

It follows that, in the event that the curator of the bankruptcy of the building company chooses (as in the present case) the dissolution of the preliminary contract (pursuant to L. Fall., Article 72), the consequent credit of the promissory purchaser ( in this case, for the return of the deposit paid together with the stipulation of the preliminary contract), although assisted by a special lien, it must be placed with lower rank, at the time of division, with respect to that of the credit institution which, prior to the registration of the contract preliminary, has registered on the same mortgage to guarantee the financing granted to the construction company.

 

Since the device of the contested provision is in conformity with the law, correct the motivation in the senses above (article 384 of the Italian Civil Procedure Code), the resource must be rejected.

 

Concerning the relationship between the preliminary agreement and the final deed before that Italian notary, it has been considered that these are two different agreements and each one of them has its own compulsory elements that must be present in both agreements. What is important to underline is that the preliminary agreement, which is usually entered into without the advice of an Italian notary, is an agreement which is in full force of effect usually only between the parties; on the other hand, the final deed before the Italian notary has a different value, because it is valid “erga omnes” which means that also third parties can and will bear the consequences arising out of the executed agreement.

 

It also can be noted that, in some cases, both the parties mean to enter into a preliminary agreement which has a strong value also “erga omnes”, because their common intention may be to write down something like the first step of the final procedure, which terminates with the final deed in front of the Italian notary.

 

However, it is very difficult to understand in some cases if the parties agreed or not about the nature of this preliminary agreement: if they both mean this agreement to be valid also “erga omnes” or only “inter partes”.

 

In some cases, the parties may agree upon an early delivery of the asset, which may happen in the execution of the preliminary payment; this may be allowed because in some cases it could be very important for the potential buyer to analyse the asset from inside, to verify if there are no flaws, before the final date.

 

Of course, in case the parties decide not to enter into a final deed of sale, the asset would be delivered back to the potential seller so it would be something like a rental agreement for the period which would be between the preliminary agreement and the final deed before the Italian notary.

 

What is very important to underline is that, in case the preliminary agreement is registered before the competent offices, this preliminary agreement automatically also is in full force and effect “erga omnes”. The reason is that by means of this registration anybody can be aware of the fact that there is a preliminary agreement between the potential seller and the potential buyer.

 

Recently, in many cases the registration of the preliminary agreement is compulsory pursuant to Italian law, but also in case the registration is not compulsory it may be appropriate, especially in case where there is no personal trust or personal knowledge between the potential seller.

 

Without entering too match into details, we can say that there are many kinds of registrations concerning the preliminary agreement, but the most important one is the one before the Italian notary. It is also usually the most expensive but it gives to the potential buyer a very high level of guarantee, because that would clearly mean that the preliminary agreement is just the first step of the procedure of sale with may terminate with the final deed of sale, and moreover that the potential seller is already committed to terms and conditions provided for under the preliminary agreement.

 

Recently, the Italian law has been modified in order to allow the parties to enter into a “rent to buy” agreement under more favourable conditions than before. The “rent to buy” agreement is an agreement where the potential buyer is technically in the first phase only a person who rents the asset because he has not decided yet if he wants to buy the asset.

 

Therefore, he prefers to rent the asset, keeping the option of buying it within the final term agreed by the parties, final term which is of course essential.

 

The nature of this agreement is highly delicate: for some aspects, it’s a rental agreement, so the effects are binding only within the parties. For other effects, it is a preliminary agreement of purchase of assets, so it may have some effect which are binding also for third parties and finally it already has some aspects which are binding also for third parties because it may be the first step of the future final deed of sale. Of course, everything depends on the fact that the potential buyer, within the expiration of the final term, decides to purchase the asset or not.

 


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