Waiver of preemption

One of the problems that has led to a considerable number of jurisprudential disagreements is that concerning the waiver of the exercise of preemption: specifically, at what time and by what formalities the grower can make a valid waiver of preemption.
Some Supreme Court pronouncements have ruled that waiver cannot precede “denuntiatio.” Therefore, since under Art. 8, third paragraph of Law no. 590 of 1965 it is necessary for the owner to notify “by registered letter to the farmer of the proposed alienation by transmitting the preliminary sale and purchase agreement,” it is necessary for the waiver to be subsequent to this notification, as it must be a waiver of a definite negotiation program (see for all: Supreme Court of April 29, 2005 No. 8997; Supreme Court of August 10, 1988 No. 4920; Supreme Court of September 3, 1985 No. 4590; Supreme Court of November 13, 1984 No. 5727).
At other times, the Supreme Court has said that for a waiver to be valid, apart from the written form, it is sufficient if it presupposes that the beneficiary of the preemption had full knowledge of all essential elements of the proposed purchase. And it has also been emphasized that in such a case the waiver in writing can also be submitted prior to the “denuntiatio” (see for all: Supreme Court of April 14, 2000 No. 4858; Supreme Court of May 29, 1998 No. 5306; Supreme Court of January 26, 1995 No. 936).
It seems, ultimately and conservatively, that the relevant time for the purpose of a valid waiver is after the farmer has been informed of the intent to alienate the rustic property. Therefore, however this information was given, which must, in any case, contain: the promisor-purchaser subject; the price; and the conditions of sale of the property, it determines the triggering of the mechanism of preemption, which seems sufficient to deem the waiver duly submitted.
In summary, therefore, once the right of preemption arises, the waiver can be filed; but for the right of preemption to qualify as existing, it is necessary for the grower to be adequately informed about the content of the program for the sale of the property.
Once the “denuntiatio” is made, in whatever form, the waiver must still be submitted in writing, under penalty of invalidity, with the consequence that, under Art. 2725 Civil Code, testimonial evidence suitable for proving waiver is allowed only in the
case of blameless loss of the document containing the waiver itself (see for all: Supreme Court March 21, 1995 No. 3241).
It has also been affirmed by Supreme Court jurisprudence (see August 2, 1993 Supreme Court No. 8525) that the consent given by the cultivator to the transfer of the land to a third party implies a waiver, but provided that it can be inferred that the cultivator has received notice in any form, but complete with all the essential elements of the proposal.
Finally, it should be pointed out that doctrine and jurisprudence have posed the problem of whether the waiver of the exercise of preemption can be considered properly submitted when the “denuntiatio” concerns a preliminary sale for person to be named, in which the promising buyer is not yet identified. In this regard, jurisprudence appears firm in declaring that the preliminary contract stipulated in the form of the contract for person to be appointed, because of the uncertainty it entails regarding the purchasing party and the disorientation it causes in the farmer, who is not presented with sure and unchangeable elements of evaluation, cannot be usefully adopted in the regulatory system of agrarian preemption (see for all: Cassation of January 25, 1991 No. 751; Supreme Court of January 31, 1986 No. 634; Supreme Court of May 13, 1983 No. 3272; Supreme Court of April 8, 1981 No. 1998).

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo