Retraction of inheritance (part one)

By declaring redemption, the farmer replaces himself in the same position as the third party
purchaser, in the sense that a kind of restitutio in integrum of the cultivator takes place, with effect ex
tunc.
Case law has posed the question of whether the right of retraction arises at the time of the act of
sale of the rustic fund to a third party, or at the time when the formality of the
transcription; and responded by stipulating that the direct cultivator who owns the neighboring land
with that alienated acquires the right of redemption at the time and by the effect of the sale and not from the
its transcription, which only sets in motion the time limit for the exercise of redemption ( cf. Cass.
July 26, 2001, no. 10220).
Case law has further clarified that the right of redemption arises when it has been
enacted the transfer of the fund to a third party, violating the rules on preemption in favor of the
subject favored by law (direct farmer on the land or direct farmer owner on the
neighboring fund).
The Supreme Court has clarified that the right of redemption applies both to the preemption of the cultivator of the fund
alienated, either because of the neighbor’s preemption, because the reference made by Art. 7 of Act 817 of
1971 in the first paragraph of Art. 8 of Law 590/1965 applies to the change made to the term of
insistence on agricultural land (reduced from four to two years), but also includes in the recall the
retracted, lest the purpose of the preemption itself be frustrated (cf. Cass. September 29, 1995, no.
10272).
A simple negotiated declaration by the farmer that he wishes to exercise the right of redemption is enough to
trigger the substitution of the farmer himself for the third-party purchaser of the agricultural land, and not
Judicial action must therefore be taken. The purpose of court action is not to constitute redemption,
But only to declare its existence. Evidently it will be necessary to bring court action
If you intend to exercise the redemption on terms other than those resulting from the deed of sale to the
third.
Redemption must be exercised within one year from the transcription of the purchase deed, otherwise the
which is not interrupted or suspended as a result of the grower’s declarations. La
Supreme Court jurisprudence states that the peremptory nature of the deadline must be taken into account
statutorily mandated time limit for the exercise of retraction, and further argues the irrelevance of the
reasons why the retraction action could not be exercised (cf. Cass. Cass. January 14, 1984,
n. 310; Cass. October 4, 1991, no. 10388; Cass. March 9, 1999, no. 2004).
Where the deed of transfer of the agricultural land to a third party is disguised, the time limit shall run from the
Date of transcription of the apparent contract.
Finally, it seems worth noting that, according to the dominant case law and doctrine, retraction operates when the third party’s purchase has taken place:
(a) Without any communication to the farmer from the alienating owner;
(b) With incomplete communication with respect to the act put in place;
(c) Before the expiration of the deadline for acceptance by the grower;
(d) Without the grower being offered the same conditions as those offered to the third party;
(e) In fractional parts of the fund, while the farmer had been offered the fund as a unit;
(f) After the farmer has agreed to purchase, but before the transfer of ownership to him or her has occurred as a result of a deferment of payment of the price (see Supreme Court September 25, 1972, No. 2779; Supreme Court April 18, 1975, No. 1478; Supreme Court October 2, 1984, No. 4867; Supreme Court April 13, 1988, No. 2931; Supreme Court December 14, 1979, No. 6525; Supreme Court November 21, 1986, No. 6846; Supreme Court January 12, 1988, No. 114).

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo