News Supreme Court rulings January 2021

1. United Sections: transfer decree immediately extinguishes mortgage

The United Sections of the Supreme Court recently ruled on the subject of expropriation and forced sale of real estate, stating in Judgment No. 28387/2020, the immediate effectiveness of the decree of transfer of the property, which is therefore from the outset “definitely productive of its own effects, including the cancellation of prejudicial formalities encumbering the property that is the subject of it.”

In fact, the Supreme Court has enunciated the principle of law that the decree of transfer of the property, bearing the order for the cancellation of encumbrances on the same (including foreclosures and mortgages), determines the transfer of the right subject to the expropriation procedure free of encumbrances and, consequently, the simultaneous extinction of the same encumbrances.

Accordingly, the Registrar of Land Registries is obliged to immediately execute the cancellation, without having to wait for the expiration of the time limit for the filing of enforcement challenges under Art. 617 c.p.c.

2. Failure to inform about the risk of fetal malformation and the right to compensation

The Supreme Court clarified how a physician who failed to properly inform the pregnant woman of the risks of fetal malformations, related to a disease she contracted, may be called upon to pay damages resulting from the failure to terminate the pregnancy, to which it is proven that the woman would have resorted in the face of serious harm to her physical or mental health.

This was clarified by the Third Civil Section in ruling no. 653/2021, in view of the fact that “the establishment of pathological processes that may cause, with appreciable degree of probability, significant abnormalities or malformations of the unborn child allows recourse to voluntary termination of pregnancy, pursuant to L. no. 194 of 1978, Art. 6(b), where it causes in the pregnant woman-who has been fully informed of the risks-a serious danger to her physical or mental health, to be ascertained concretely and on a case-by-case basis“.

The Court further clarified that, for this purpose, Law 194/1978 does not require that the abnormality or impairment has already materialized or been ascertained, but it is sufficient that the pathological process can develop a causal relationship with a fetal impairment.

3. Work accidents: newly appointed supervisor not informed of company practices acquitted

In a recent Supreme Court ruling, Judgment no. 1096/2021, the Fourth Criminal Section held that it was not imputable to the supervisor, who had been appointed for only five days to replace the manager of a supermarket, to fail to comply with a company practice, where there is no certainty that he was aware of the practice or negligently ignored it.

The Ermellini pointed out that the principle of exigibility requires consideration of the agent’s concrete possibility of observing the precautionary rule, as the culpable reprimand concerns the realization of an act of crime that could have been avoided through observance of the violated precautionary rules, of which he necessarily had to be aware and which he should not have been unaware of through his own fault.

In the absence of definite and objective evidence to prove such knowledge or cognizability, the court held that the defendant’s liability should be excluded, specifying that otherwise “itwould place on the figure holding a position of guarantor an unacceptable position criminal liability, such as to border on strict liability.”