Form of denuntiatio in agricultural preemption

Art. 8, third paragraph of Law no. 590 of 1965 stipulates that the owner “must notify the farmer by registered letter of the proposed alienation by transmitting the preliminary sale and purchase agreement.” This notification of one’s intention to alienate the fund is given the name denuntiatio.
There is much debate in doctrine and jurisprudence about the nature of denuntiatio: one view states that it is in the nature of a contractual proposal under Art. 1326 Civil Code, with the consequence that if so, the acceptance of the person holding the right of first refusal is sufficient to deem the contract concluded with the latter. Another view, however, denuntiatio constitutes an autonomous instrument with respect to contractual proposal .
Adhering to either view has significant consequences, in fact: if one accepts the view that denuntiatio is a contractual proposal, it must be stated that preemption cannot be exercised without the denuntiatio being formally submitted. Doing so would deem erroneous the jurisprudential view that it is not the form of denuntiatio that counts, but rather the circumstance that the preferred has taken actual cognizance of the owner’s intention to cede the land and the terms of the planned contract.
And again, we arrive at the absurd assertion that it is necessary for the denuntiatio to take place in a notarized private writing in order to have the affirmative response of wanting to exercise preemption welded with the proposal for the purpose of obtaining the suitability of the title for the purpose of real estate publicity.
In relation to the form of denuntiatio, in its original wording Art. 8, Paragraph 4 of Law 590 of 1965 stipulated that the owner should notify the farmer of the proposed alienation indicating the price.
At a later date, the rule was amended by Art. 8 of the law of August 14, 1971 no. 817, which stipulated, “the owner must notify the farmer by registered letter of the proposed alienation by transmitting the preliminary sale and purchase agreement in which the name of the buyer, the sale price and other agreed upon rules including the clause for the possibility of pre-emption must be indicated.”
This is a broader and stricter rule than the previous one, because it, on the one hand, qualifies the notification by requiring it to be sent by registered letter, and, on the other hand, requires the transmission of the preliminary contract with name, price and clauses all.
The question was immediately raised as to whether this form of denuntiatio should be considered required under penalty of nullity. Currently, case law responds in the negative; stating that the communication
can also be verbal; the important thing is that it reaches its destination and that the owner can prove it.
The preliminary to be transmitted must be valid, and therefore a preliminary not signed by one of the parties or signed with crocesign is not sufficient .
In addition, it was stated that the owner’s failure to comply with all the obligations imposed by Art. 8 of Law 590 is remedied by the grower’s declaration to avail himself of the preemption by unconditionally accepting the proposal, even though he is aware that it does not fully comply with the aforementioned rule.
There is no doubt, then, that the jurisprudential interpretation has substantially overcome the formal rigidity of the rule, perhaps with the aim of thereby safeguarding the farmer’s right to exercise preemption.
In view of the above, we can say that:
– communication to the grower may also be made in a manner other than as provided in Art. 8 of Law no. 590 of 1965, having to exclude cogent character to the notification procedure and thus admitting the possibility of its replacement by a notice of the proposed purchase complete with all essential elements;
– the sending of the denuntiatio by registered letter is not a prescribed formality under penalty of ineffectiveness, sufficing suitable means to achieve the purpose, which is to enable the exercise of preemption to those entitled to it;
– transmission of an unsigned copy of the preliminary contract in lieu of the original is eligible;
– communication can also be verbal.
Ultimately, what matters, according to case law, is not the container (which can be: registered letter, simple letter, notification by bailiff, oral communication), but rather the content, which means that the communication, which must in any case come from the owner of the land for sale and not from others, must necessarily indicate at least the price and the name of the promissory purchaser.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo