Retraction of inheritance (part two)

Another problem relating to retraction is that inherent in the assertion (ref. Cass. Dec. 23, 1974, No. 4388) that transcription in favor of the third party does not prevent purchase in favor of the farmer who has exercised redemption after the date of transcription, this conclusion being motivated by the observation that the law, in the case of redemption, grants one of the purchasers (the redeemer) a preferential right over the redeemed.
This answer, while valid, in the sense that the priority of the transcription of the purchase does not affect the exercise of the redemption that took place subsequently, should be further clarified by referring also to the fact that in this case there is no question of establishing a priority between two autonomous negotiated purchases, but only of substituting the person of the cultivator for the third party in the existing purchase contract, moreover with ex tunc effects.
It also seems noteworthy to point out (ref. Cass. Sept. 29, 1999, no. 10761), on the subject of agrarian contracts, that the legislature did not sanction the nullity of contracts for the purchase of rustic land concluded in violation of the rules on agrarian preemption, but merely established that the direct cultivator may exercise the so-called “retract” on the alienated land, vis-à-vis any assignee, within one year from the transcription of the contract, with the consequence that said contracts are fully valid in the event of failure of the direct cultivator to exercise the retract in a timely manner .
It has been argued (ref. Cass. Dec. 18, 1998, No. 12683) that the owner of the adjoining fund, if he wants to exercise the right of redemption, must prove that he holds a property right on the fund adjoining the sold one with no relevance to the fact that on the alienated fund he holds a right of easement of passage.
Another case of particular interest is when a fund has been acquired, in violation of the rules on preemption, by more than one party; retraction is exercised, and the retractor does not pay as many sums as there are retracted creditors, but only one sum generically for the benefit of all retracted creditors.
The Supreme Court (ref. Cass. Oct. 29, 2001, No. 13416) clarified various aspects that:
(a) The exercise of the retraction action operates on the basis of a condicio iuris: the payment of the price in favor of the buyer of the agricultural land;
(b) The sum paid to the purchaser does not take the form of a consideration for the purchase of the property by the person who victoriously exercises the action of retraction, but has only the meaning of a debt of restitution to a creditor of the sum paid by him for the purchase of the property;
(c) since this is an obligation to return a sum of money, the issue of whether or not this obligation is joint and several must be assessed not ex parte debitoris, but ex parte creditoris, with the
result that if the creditors are more than one, the Supreme Court, in its ruling of June 18, 2001, no. 8235, decided that: “on the subject of joint and several obligations, in the relationship with plurality of debtors there is a presumption of joint and several liability, pursuant to Article 1294 of the Civil Code, the rationale of which is to protect the creditor’s interest in disposing, pursuant to Article 1292 of the Civil Code, of the option of a single execution against the chosen estate, while this presumption of joint and several liability is completely excluded in the case of an obligatory relationship with plurality of creditors, except in the case of an express agreement of joint and several liability by the creditors themselves.”
(d) Consequently, the payment of a single sum by way of restitution if the creditors (the purchasers of the agricultural property, who must have in restitution what they paid for the purchase of the property) are more than one violates the rule that, based on general principles, requires the differentiated payment in correlation with the obligation to individually silence each of the creditors.
In view of the above, the retractor, in the present case, will be required to pay under the royal offer system as many sums as there are creditors.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo