News Supreme Court rulings October 2021

1. Return of loan and burden of proof regarding title

The Second Civil Section of the Supreme Court, in Order No. n. 27372 of Oct. 8, 2021, on the subject of a loan contract, stated that the plaintiff, in order to obtain the restitution of the sums, must give proof of all the constituent elements of the claim and not only the delivery of the money, since it could not be deduced from the latter, the existence of a valid title to substantiate its claim.

However, the Ermellini made it clear that where the defendant disputes the title attached by the plaintiff and asserts the existence of a different title, he has the burden of proving it, as the system does not allow a displacement of wealth without justifiable cause.

For this reason, the court, in evaluating the rejection of the restitutory claim, must use “a criterion of special caution,” taking care to also verify the circumstances of the concrete case and, in particular, the existence of a “different and plausible causal justification for the payment” than that alleged by the plaintiff.

2. Illegal “past-due items” in bills

The Supreme Court, in Order no. n. 17959/2021, affirmed for the first time the illegitimacy of the so-called “prior items,” i.e., the tariff adjustments owed to operators under Resolution No. 643/2013 issued by the then Authority for Electricity Gas and Water System.

In particular, Section III of the Supreme Court clarified that the Authority’s resolution, as an administrative measure, cannot stand in conflict with the principle of non-retroactivity of the law, which is explicitly enshrined in Article 11 of the Pre-Laws.

As a result, any request for payment related to the aforementioned adjustments, which are due, according to the 2013 resolution, to the operators for the period prior to the transfer of the Integrated Water Service (I.W.S.) responsibilities to the Authority and chargeable in subsequent bills until 2022, is to be considered unlawful.

3. Homicide Aggravated stalking: for the United Sections, it is a complex crime

The United Criminal Sections of the Supreme Court, in ruling no. 38408 of Oct. 26, 2021, intervened to resolve a jurisprudential contrast that arose on the subject of murder committed as a result of persecutory conduct against the same victim.

Specifically, the question was whether or not the crime of stalking could be considered absorbed within the crime of aggravated murder under Articles 575, 576 Paragraph 1, no. 5.1 of the Criminal Code, depending on whether the aforementioned cases are to be considered as a unit, as a complex crime, or in conjunction with each other.

The Supreme Court, recognizing the nature of a complex crime under Article 84 of the Criminal Code of the case under consideration affirmed, however, they clarified that the crime under Art. 612-bis of the Criminal Code, can be effectively considered absorbed by the crime of aggravated murder only in those cases in which “the events, in addition to presenting a spatio-temporal contextuality, are also placed in a unitary finalistic perspective,” having to exclude instead absorption in those cases in which the murder of the victim occurred at a considerable lapse of time from the persecutory conduct.