Agricultural exchange and preemption

For the purpose of exercising the right of first refusal, Art. 8 of l. 590/1965 expressly provides for the “transfer for consideration or grant in emphyteusis” of the land subject to the right, recalling, moreover, both the term “price” and the term contract “preliminary sale-purchase,” as the necessary means for the notification of the denuntiatio to the prelazionario.

The foreword points out that the types of negotiations in the presence of which the tenant or neighbor–both direct cultivators–have the right to exercise preemption are exclusively those that have as their object the transfer of the rustic fund for consideration.

Paragraph 2 of the aforementioned Article 8, on the other hand, expressly stipulates what are the transactions in the presence of which there is no right of first refusal for the above-mentioned parties, namely when the transfer of ownership of the land takes place by virtue of “exchange, forced sale, compulsory liquidation, bankruptcy, expropriation for public utility, and when the land under master plans, even if not yet approved, is intended for construction, industrial or tourist use.” In such situations, the exercise of preemption is excluded because the rationale of favoring the reunion of the quality of landowner and land worker is not favored in them (Art. 8, l. 590/1965), nor is the rationale of favoring the amalgamation of agricultural funds to improve their profitability by forming larger direct-farm enterprises (Art. 7, l. 817/1971).

With specific reference to exchange, case law – recently confirmed – has already had occasion to clarify how this exclusion should be referred to all hypotheses of exchange, i.e., to any hypothesis of transfer having as its object the exchange of the fund with other real estate (see Civil Cass. Dec. 20, 1980, no. 6573; Civil Cass., Nov. 21, 1981, no. 6225; Civil Cass., May 16, 2013, no. 11954).

Greater clarity in this regard is provided by the definition of exchange-an historical evolution of barter-contained in Article 1552 of the Civil Code, which defines it as “the contract which has as its object the mutual transfer of ownership of things, or other rights, from one contracting party to another.” The possibility of mutual heterogeneous transfer of property and rights well highlights the difference with the transfer resulting from the exercise of preemption.

In the right of first refusal, in fact, the one who exercises the right of first refusal will be able to offer to the owner of the land put up for sale the exact same performance required of the third party, the price; and, for this reason, the owner of the land will not be faced with objectively different performance, but only with a different party with whom to contract, on equal terms, the same contract of sale.

Different is the case of the exchange where it is clear that the interests at stake will be based on the difference in the benefits offered in exchange, i.e., the quality and quantity of the good/right offered as counterpart to the transfer of the land.

In view of the different underlying interest, therefore, the right of first refusal will not be exercisable even in the event that agricultural land is granted in exchange for an urban building or other property of a different nature (see Civil Cassation, June 16, 1984, No. 3607; Prato Tribunal, May 26, 1987; Civil Cassation, Nov. 21, 1981, No. 6225).

It should be pointed out, however, that the exchange does not turn into a transfer for consideration-a circumstance that would make the right of first refusal applicable again-not even in the event that, in order to compensate for the difference in value existing between the mutually transferred goods, the parties agree to pay an adjustment sum. This is because the adjustment is considered a secondary and incidental element with respect to the value of the property (Cass. civ., Sec. III, Nov. 3, 1990, no. 10573; App. Salerno, March 13, 1998).

Finally, it should be noted that the exclusion under agricultural regulations also applies in the corporate sphere. Following, in fact, the above interpretation, the right of pre-emption will not be exercisable even in cases where the rustic fund has been transferred to a corporation for the purpose of acquiring the status of shareholder in correlation with the share subscribed at the same time as this transfer, since even in this case the rustic fund is transferred for a consideration consisting of other definite and infungible property and not for consideration (Cass. civ., Sec. III, Aug. 1, 1991, No. 8458).

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo