News Supreme Court rulings December 2020

1. Exclusive use of a condominium property is not a real right

The United Civil Sections of the Supreme Court of Cassation, called to rule on the nature of the right to exclusive use of a condominium property, ruled that the agreement having as its object the creation of the so-called “real right of exclusive use” over a portion of the condominium courtyard constituting a common part of the building, such as to affect, depriving it of concrete content, the essential core of the condominium owners’ right of equal use of the common thing, is precluded by the principle, inherent in the codified system, of the numerus clausus of real rights and the typicality of them, which prevents the creation of a new real right, albeit limited.

In ruling no. 28972 filed on Dec. 17, 2020, the Joint Sections thus ruled out the real nature of the right to exclusive use of condominium property, resolving a jurisprudential contrast that arose between one orientation that upheld the real nature of such a right and another that leaned toward its qualification as a peculiar case of the right to the equal use of a common property under Art. 1102 c.c.

2. Insulting the wife constitutes the crime of mistreatment

The Supreme Court intervened in the trial on the crime of mistreatment in ruling no. 34351/2020, confirming that daily insults and offenses directed at his wife are sufficient to integrate this offense, as they demonstrate the repetitiveness and obsessiveness of the conduct.

The court pointed out that the task of the Court of Appeals, which had recognized the mitigating factor of lesser seriousness for the crime of sexual assault against his wife, is to assess the repetitiveness and habituality of the behavior enacted by the husband against his wife; in fact, it turned out that the man enacted constant prevarication, consisting of continuous insults uttered on a daily basis and not only during circumscribed quarrels.

3. Loss of profit: full compensation for future wages is due

The Supreme Court of Cassation, in its December 9, 2020 order no. 28071 clarified that, on the subject of compensation for lost profits understood as the loss of future income from employment, where the injured party proves that he or she has lost a pre-existing indefinite employment relationship he or she held due to the injuries resulting from a tort, “the pecuniary damage is to be liquidated by taking into account all wages (as well as all related accessories and probable increases, including pension) that he or she could have reasonably earned under that specific employment relationship.”

The court also clarified that compensation is due in full and not based solely on the percentage of loss of work capacity, partially overturning the decision of the Venice Court of Appeals, which had awarded the injured party, a victim of a traffic accident, lost wages due to dismissal only to the extent of the impairment suffered.

Only if the victim has found a new job should the compensation be equal to the difference between the lost wages and the wages earned or achievable by virtue of the new employment.