Fruits during the period of bottom retention

An important issue with significant practical implications concerns the rights and obligations of the tenant during the period of fund retention. The question arises as to whether the tenant can make the fruits his or her own by paying only the rent, or will he or she have to return them to the landlord in full, except for reimbursement of expenses incurred in production and harvesting.

It should be noted that this issue is totally different from the issue of whether the retainer can make the fruits his own by imputing them to his claim, an issue for which there is uniformity of opinion in the sense of a strict exclusion of this power.

In the present case, the doubts concern a quite different situation: during the pendency of the judgment and with the tenant’s remaining on the land, who avails himself of the retention, the land will continue to be cultivated, will produce its fruits. Will such fruits accrue to the retainer or owner and what, if any, will be their consideration?

Possible alternatives, without claiming to give a definitive solution to the problem, are as follows.

Considering the situation of the retainer, it is common ground that when he avails himself of this right of retention, he has no right to stay on the land as a tenant: in fact, retention necessarily presupposes that the lease has been terminated or terminated. Consequently, since the right of retention is only a form of security granted to the tenant for the payment of the improvements made, it is, in short, a self-defense, essentially and solely, passive, which does not allow him to use the retained thing, nor to act enforceably on it, but rather obliges him to guard the thing with the diligence of a good family man, it should be concluded that, if he continues to cultivate the property, the fruits produced cannot be his for any title, but only the owner’s.

The necessary conclusion of this discussion is that the retainer will only be able to take advantage of Article 821 paragraph 2 of the Civil Code, for which “he who makes fruits his own shall, within the limits of their value, reimburse the one who has made expenses for the production and harvest.”

Moreover, some doctrine expresses perplexity about the aforementioned theory: if the retainer, under these conditions, does not want to cultivate the fund, will he be in his right or by some title liable?

In fact, such a perspective may seem unlikely or even absurd, but it does, according to the aforementioned doctrine, appear consistent with the preceding arguments. It is said in doctrine (6) that the retainer is obliged to guard the thing with the diligence of a good family man, being liable if through his fault or malice it is damaged or destroyed.

It is certain that a fund that has not been cultivated for even a short period of time suffers extremely serious damage and will require large expenditures for the resumption of cultivation itself.

These considerations, which are undoubtedly valid, do not seem decisive: to rely on them to argue that the special nature of the thing held in custody places the obligation of cultivation of the fund on the custodian is to broaden the scope of the custodian’s obligations extremely broadly and not in accordance with the legal principles of custody itself.

Jurisprudence is extremely scarce on the subject; only a judgment of the Court of Cagliari (7), can be used, by analogy, to counter the thesis developed so far, which attributes the fruits of the fund to the owner. In the judgment it is stated verbatim: “The possessor of good faith, holder of the right of retention under Article 1152 of the Civil Code, not being obliged to release the fund until the indemnities for the additions are paid to him (Article 936 paragraph 2 of the Civil Code), does not have to answer to the claimant plaintiff for the fruits received and percipiendi under Article 1148 of the Civil Code.2”

It seems that more evidence can be drawn to counter the argument put forward by referring to the provision of Article 1591 of the Civil Code, which states that the tenant in default of returning the thing is obliged to give the landlord the agreed consideration until redelivery, subject to the obligation to pay compensation for greater damages. The situation of the tenant in default is evidently common to that of the retainer: permanence on the property.

Well, if the basic consideration, to which the tenant in arrears is liable, is the rent, subject to compensation for greater damages, is not such a consideration conceivable for the retainer, whose stay on the land is based on right and certainly not wilful or culpable? The juxtaposition seems bold, but not impossible.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo