News Supreme Court rulings August 2021

The United Sections on the validity of real estate transfer in execution of separation or divorce agreements.

In ruling no. 21761/2021, the United Sections resolved a contrast regarding party autonomy in the context of “marital crisis,” with regard, in particular, to the validity of agreements involving real estate transfers (Articles 1322 and 1376 of the Civil Code) and the role of the notary public for the purposes of transcribing said transfers.

Specifically, the Ermellini recognized the admissibility of the so-called. “postnuptial contracts” “that directly and immediately implement the transfer of ownership of property or other real right over the same,” specifying that such agreements, if included in the hearing record drawn up by a court auxiliary, take the form of a public deed and, consequently, following the divorce decree or probate, constitute valid title for transcription under Article 2657 of the Civil Code, without the need for further intervention of the notary, since the verifications under Article 29 paragraph 1a l. 52/1985 also be validly accomplished by the Registrar.

U.S. Sections change course: merger extinguishes merged company

The United Sections of the Supreme Court of Cassation have come back to express their views in ruling no. 21970 of July 30, 2021, on the effects of corporate merger and affirmed the principle of law that “merger by incorporation extinguishes the incorporated company,” overcoming the previous orientation, which since 2006 had reconstructed the merger as a modifying-evolutionary and not an extinguishing event in the corporate sphere.

From a strictly procedural point of view, the Ermellini clarified the proceedings, initiated by or against an incorporated company, are affected by radical invalidity; however, the incorporating company has the right “to explain intervention in the course of the case, pursuant to Article 105 of the Code of Civil Procedure,” thus rectifying the invalidly initiated proceedings.

This principle does not apply, however, to the case in which the merger is completed in the course of the trial: in this case, the merged company will automatically take over as a party to the trial in place of the merged company as a result of the automatic continuation of relations provided for in Art. 2504-bis c.c.

Tax crimes: seizure of first home possible if debtor does not reside there

The Supreme Court, in ruling no. 30342 of Aug. 18, 2021, provided some clarifications on the subject of property expropriation against the person under investigation for tax crimes.

In particular, the III Criminal Section clarified that the limitation on property expropriation in Art. 76, paragraph 1(a), of Presidential Decree September 29, 1973, no. 602 as amended by Art. 52(1)(g) of Decree Law No. June 21, 2013. 69 (converted, with amendments, into Law No. 98 of August 9, 2013), operates only against the Treasury, for tax debts, and not against other categories of creditors; moreover, it concerns only the only property owned by the debtor in which he or she resides anagrafically and not the debtor’s “first home,” which, therefore, may well be seized even for the purpose of confiscation, whether direct or for equivalent.