Right of first refusal compared

Even before the enactment of the relevant legislation, the Civil Code provided in Article 732 of the Civil Code that, in the event of alienation by the co-heir of his or her share or part of it to an outsider, the alienator would be obliged to notify the other co-heirs, as they were entitled to pre-emption on the purchase, of the proposed alienation in detail and including the price.

The latter, will be able to exercise the right within the period of two months from the last of the notifications, with the clarification that the aforementioned period will not be subject to the rules relating to the interruption of the statute of limitations nor to those relating to the suspension of time limits, except in peremptory cases provided for by law (Article 2964 of the Civil Code).

Similarly to what is provided for in the case of failure to denuntiatio in the agrarian sphere, the lack of the aforementioned notification, gives rise in the co-heirs (injured in their own right) to the right to redeem (so-called inheritance retraction) the share not only from the purchaser, but also from any subsequent successor in title, and this for as long as the state of hereditary community lasts and, in any case, within the limitation periods provided by ordinary law, which are broader than those provided for by agrarian legislation.

It should be pointed out that in the event that the redemption is exercised not by a single coheir but by several or all of them, in order to fairly protect the right of each individual coheir, the disputed share will be assigned to all in equal shares (Article 732 of the Civil Code).

The Rationale of the above provision is to prevent unrelated parties from easily “entering” the community of inheritance. The provision in fact entails a derogation from the principle of freedom and autonomy of negotiation and free movement of goods – which, however, cannot be extended to donations (see Cass. civ. Sec. II, 31-01-2014, no. 2159) – balanced and justified by the need to facilitate those who are already part of the communion by avoiding, as well, the excessive splitting of the inheritance.

Partially different-in that it is more specific and stringent-is the rationale underlying the provision in Article 8 L. May 26, 1965, no. 590. It does not aim to prevent excessive fragmentation of the inheritance and the entry of parties unrelated to the sharers, but rather is aimed at facilitating and safeguarding the development of cultivated property.

Both regulations must be taken into consideration in order to have the right of first refusal exercised by those entitled to it. However, it should be pointed out that the provision of Article 732 cc. overrides that of Article 8 L. 590/65. This is because the legislature, it seems, wanted to prefer the position of the co-heirs over that of other possible claimants of first refusal.

The law provides for the burden of the owner/seller to notify, by registered letter, the cultivator of the proposed alienation by transmitting with it the preliminary purchase and sale agreement complete with the data of the promissory purchaser, the sale price, manner and time of payment, and all other agreed-upon rules (among which should be included the indication of the existence of any right of first refusal).

The pre-letting farmer shall have the option of accepting the same covenants as the promissory purchaser – taking over from the same – by formal written notice to the owner, which must be received by the latter within 30 days of receipt of the denuntiatio, to be followed by the fulfillment of the consequent obligations within the terms of the law.

Similar to what is provided for the so-called inheritance retraction, also in the agrarian field, if the owner fails to provide denuntiatio or the price and/or the conditions of sale actually applied do not correspond to those provided for in the notified preliminary, the person entitled to the right of pre-emption may, but within one year from the transcription of the sale contract, redeem the fund from the purchaser and from any other subsequent successor in title.

In view of the principle of safeguarding and facilitating the development of cultivated property, the Supreme Court has recently clarified that “Within the community of inheritance, each of the co-heirs is free to transfer his or her share of the rustic estate to one or the other co-heir, since the limitations on bargaining autonomy arising from the pre-emption recognized by the L. no. 590 of 1965, Article 8, last paragraph, in favor of the direct cultivator co-heir” (cf. Cass. civ. Sect. II, Sept. 11, 2017, no. 21050).

Therefore, a transfer made from one co-heir to another, that is, within the same community of inheritance, would lead to the same result intended by the favorable legislation, without having to provide for and put in place the aforementioned formalities.

In conclusion, given the presence of a favorable/protective rationale underlying both of the regulatory provisions set forth above, it is pointed out that in the case where a share of a rustic fund, conducted under lease by a direct grower who, at the same time, is also a co-heir of the alienator of the fund, is the subject of a transfer for consideration, the right of first refusal provided in favor of the tenant grower by the aforementioned Article 8, l. n. 590/1965 will concur, without excluding it, with the (generic) right of first refusal under Article 732 of the Civil Code. The holder may exercise within a single judgment both preemption rights, acting for one primarily and for the other subordinately, without the proposition of one implying a waiver of the other (cf. Cass. civ. Sect. III, June 17, 2016, no. 12520).

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo