Revocation of denuntiatio after the period for exercising the right of first refusal has expired

On the subject of agricultural preemption, while on the one hand the Supreme Court has, recently, reiterated that the proposed sale is not revocable before the period of thirty days stipulated by law for the exercise of the right of preemption has elapsed, on the other hand it has, implicitly, recognized the revocability of the offer once this period has elapsed (cf.ex pluris Cass. June 22, 2016, no. 12883).

Accordingly, it is common ground that the owner-offeror has the right to revoke the offer of sale made after the 30-day period has elapsed. This circumstance would not raise any particular problems where the prelawarer had not communicated his willingness to exercise the right of preemption over the fund within the stipulated period, thus tacitly waiving the right, or where the prelawarer had expressly stated that he did not wish to exercise it.

Having posited the exercise of the power of revocation after the aforementioned deadline has passed, the pronouncement just referred to offers the cue for an analysis regarding the “thirty-day period,” the prelazionario’s declaration and the revocation of denuntiatio.

In the case before us, the prelawarer asks the court of legitimacy to declare, in any case, that the denuntiatio is not revocable because the notice of acceptance thereof, that is, the manifestation of the intention to exercise the right of preemption on the purchase of the land, had been sent, by registered letter A.R., on a date prior to the notice of revocation by the owner-offeror.

If such an approach were to be followed, it would follow that the date of sending the registered letter containing the tenant’s declaration of intention to exercise the right of would in itself be worthwhile to constitute a valid and effective legal transaction, that is, an act capable of producing its effects even in the hands of the owner-offeror, although the latter has not yet been made aware of the prelawholder’s intentions.

On this point, however, it should be pointed out that, according to a well-established guideline(see Cass. n. 1331/1997), the Supreme Court has clarified that the tenant’s declaration that he or she wishes to exercise the right of first refusal constitutes a recetive act of negotiation, that is, an act that is capable of producing its effects only when the declaration itself comes to the attention of the addressee. Moreover, “knowledge” is not to be understood exclusively as the owner’s actual awareness of the other party’s manifestation of will, there being, in any case, a presumption of knowledge on the part of the owner where there is certainty that the declaration has been received at the addressee’s address(cf. Cass. n. 9303/2012; Cass. n. 15671/2011).

It follows from the above, that the mere mailing of the tenant’s declaration, although having a certain date, is not capable of constituting a valid and effective legal transaction, and that the revocation made by the landlord, after the thirty days for the exercise of the right of first refusal have elapsed, but before he has received the declaration of the prelawarer, will be valid and effective.

The rule of the different commencement of the effects of service for the notifier and the addressee, introduced by the ruling of the Constitutional Court November 26, 2002, no. 477, finds, in fact, application only with reference to the service of procedural acts and not in the different case of the dispatch of acts of a substantive nature, among which is included the declaration of the prelazionary that he intends to exercise the right of preemption.

As a corollary to the above, it can be said that the declaration of the prelazionary although sent at a date prior to the owner’s declaration of revocation of the proposed sale is not capable of preventing the revocability of the denuntiatio which will remain valid and effective if the declaration of the prelazionary has not entered the sphere of knowledge of the owner-offeror.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo