Supervening buildability of the fund and assignment of claim

In the case of supervening buildability of the leased land, posed the provision of compensation to be paid to the tenant pursuant to Article 50 of Law 203/82 for the removal of the land, to be quantified alternatively in the amount arising from
a)
from the estimate of the crops in place on the land in question, as well as the land improvement works, additions and transformations of productive arrangements and rural buildings carried out in compliance with the provisions of Article 16, paragraph 1, of the same law or
b)
by the quantification of the allowances provided for in Article 17 law no. 865 of 1971, thus having to exclude the cumulability between the latter allowances and the other two disbursements considered above(cf. Cass. civ., Sec. III, June 6, 2002, No. 8214), it seems useful to verify what are the possible consequences of the succession to the farm and the takeover of all active and passive relationships in its head.

Therefore, it is necessary to analyze both the regulatory provision on the assignment of credit (Art. 1264 Civil Code) and that on the assignment of business (Art. 2559 Civil Code).

As for the assignment of credit, Art. 1264 c.c. provides that it is effective against the assigned debtor when the latter has accepted it or when it has been notified to him, with the consequence, on the one hand, that the assignee will have to perform against the transferee only when he has become aware of the assignment – by acceptance or notification – and, on the other hand, always post the notification of the assignment, that he will be able to oppose to the new creditor all the exceptions that he could have opposed to the assignor.

The legislature’s objective in the matter of assignment is to place the assigned debtor in a position to become aware of the changed ownership of the obligatory relationship being assigned and, for this reason, did not provide any form requirement for the notification of the assignment (see Supreme Court January 28, 2014, No. 1770).

The consensual nature of the contract of assignment means that it is perfected by the mere consent of the interesting parties, i.e., the assignor and assignee, resulting in the immediate transfer of the right to credit, with the sole exception that it is an assignment of a future credit. In the latter case, in fact, the transfer of the claim will take place only when the claim comes into existence and, previously, the contract will have mere mandatory effect (see Cass. Jan. 17, 2012, No. 551).

Partially different is the provision of Article 2559 of the Civil Code relating to the assignment of receivables related to the transferred business, in that it provides that the assignment of receivables will be effective against third parties even if the debtor is not notified or accepts it, provided that the transfer of the business has been registered in the Business Register at the Chamber of Commerce.

In light of the above, by complying – alternatively and as required by the case – with one of the above requirements, the assignment of the claim will be effective vis-à-vis third parties and the assigned debtor, and the assignee will be entitled to claim payment of the indemnities under Article 50 l. 203/82 already existing in the hands of the company at the time of the takeover.

Otherwise, should the transferee have failed to carry out any of these obligations, the assignment will not be enforceable against either the owner of the land subject to the change in land use, as a hypothetical debtor for the amount of the indemnity, or his purchaser (see Trib. Monza, Sec. agraria, Judgment April 28, 2006).

The rationale of greater protection of the farmer/tenant and the encouragement of continuity in cultivation underlying the Agrarian Law does not, therefore, invalidate the provisions for “publicity” of the assignment provided for in our Civil Code, which in fact remains governed by the ordinary regulations in force on the subject.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo