Exceptional agricultural leases and contracts with the public administration

The lease agreement, governed by Law no. 203 of 1982, is not among the contracts for which under Article 1350 of the Civil Code the written form is mandatory for the existence and validity of the contractual relationship, thus being able to be validly concluded between the parties either in writing or in oral form.

The exception to the Civil Code, is found, moreover, with reference to “ultra-nine-year” contracts, i.e., those lasting more than nine years, which, in addition to being able to be validly concluded in oral form, remain valid and effective not only between the parties, but also vis-à-vis third parties, even if they are not transcribed in the land registers (Article 41 of Law No. 203 of May 3, 1982).

Civil law regulations under Article 2643 of the Civil Code stipulate the obligation to transcribe “ultra-nine-year” lease and rental contracts in the land registers for the purpose of their enforceability against third parties.

For the protection of the tenant, the rules on agricultural leases are defined by the legislature as mandatory, such that any clauses that differ are not considered null and void, but are automatically replaced with clauses that comply with the provisions of the law (Article 58 of Law No. 203 of May 3, 1982).

In this sense, moreover, the Supreme Court has recently pronounced itself, which reiterated very clearly that “when an agricultural lease contract is concluded in violation of Art.
23, para. 3
, of the law of February 11, 1971, no. 11 (as replaced by Art.
45
of law of May 3, 1982, no. 203), a provision that makes the validity of stipulations made in derogation of the existing rules on agricultural contracts subject to the need for the parties to be assisted by their respective professional organizations, does not result in the nullity of the entire transaction, but rather in the automatic substitution-under Of Art. 1339 Civil Code. – of the clauses agreed by the parties in deviation from the legal model with those legislatively provided for, without prejudice to the existence and validity of the lease agreement under Article 1419, paragraph 2, Civil Code” (Cass. civ. Sec. III Ord., Jan. 25, 2018, No. 1827).

Moreover, the provision in Article 45 of the Agricultural Law provides contracting parties with the possibility of concluding agricultural contracts in derogation of the so-called “mandatory” provisions. All this, subject to strict compliance with the requirements for the validity of the exceptions included in the contract, namely, that the said contract was entered into with the assistance of the respective agricultural professional organizations that are most representative at the national level.

It should be noted, however, that a well-established guideline considers that the assistance of trade associations cannot be guaranteed by the insertion of a mere style clause within the contract, but must be expressed in an activity of effective advice and guidance, suitable to clarify to each party what is the content and purpose of individual contractual clauses that deviate from the provisions of the law, so that the stipulation takes place with as much awareness as possible. In addition, it is noted that, without prejudice to the need for effective, explanatory and clarifying assistance with the derogations made, the derogation contract will be valid even if the assistance was not provided from the initial stage of negotiations, but occurred only at a later time: as long as it was prior to the signing (see Cass. civ., Sec. III, Nov. 26, 2003, No. 18055).

In the event that such assistance has not been provided, for the purpose of the declaration of partial nullity, with “automatic” replacement of the clauses that do not comply with the provisions of the law, the violation can be made valid only by the party that, at the time of the stipulation, was not assisted by a representative of the professional organization to which it adheres, as this is a protective nullity, while nothing can be opposed by the party that was actually assisted by its professional association (see, among many, Cass. civ., Sec. VI, Ord. August 2, 2016).

Despite the provision of the aforementioned protective (partial) nullity, the Italian legal framework provides for an additional exception to safeguard the “overriding interest” related to the usability of state-owned land in civic use.

More precisely, the public administration may well enter into contracts with private parties for the lease of rustic land having as its object the concession for the individual and exclusive enjoyment of a state-owned land of civic use temporarily not used by the community, but this concession can only be of a precarious and temporary nature.

It follows that, in order to protect the overriding interest of the P.A., the contractual relationship remains exempt from the special rules on agrarian matters inherent in the duration of contracts and automatic renewals, since otherwise the Public Administration would be precluded from conditioning the continuation of conduction and the renewal of contracts on the compatibility, in concrete terms, with the land’s destination for civic use (see, for all, Cass. civ., Sec. III, Ord. Oct. 10, 2017, no. 23648).

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo