News Supreme Court rulings June 2021

Disposal of cubage and registration tax: long-awaited clarifications from the United Sections

The United Sections of the Supreme Court intervened, in ruling no. 16080 of June 9, 2021, on the subject of legal qualification of the deed of cubature transfer, specifying that it constitutes a transaction “immediately transferring a building right of a non-real nature with patrimonial content,” which therefore does not require ad substantiam written form and is transcribable under Art. 2643 no. 2a c.c.

The Board further clarified that this deed is subject to proportional registration tax as a “different deed,” having as its object performance with patrimonial content under Article 9 Tariff Part One attached to Presidential Decree no. 131/86 as well as, in case of transcription and transfer, to mortgage and cadastral tax in a fixed amount of 3%, pursuant to Art. 4 Tariff annexed to Legislative Decree. n. 347/90 and 10(2) of the same Decree.

Rent arrears and landlord inaction: it is abuse of right to suddenly demand them after years

According to the Third Civil Section of the Supreme Court (Judgment No. 16743/2021), in a lease of real estate for residential use, the landlord’s absolute inaction in enforcing the tenant to obtain the payment of rents, which lasted for a very considerable period of time in relation to the duration of the contract, is suitable, if it is supported by additional objective circumstantial elements, to engender in the tenant an expectation of debt forgiveness by facta concludentia.

In the case at hand, the Court clarified that the sudden demand for payment of rents-never demanded from the origin of the negotiating relationship, although formally provided for in the agreements between tenant and the family company leasing the property-if corresponding to a situation of blatant conflict between the partners and not justified by other factors, may constitute an abuse of right for breach of the obligation of contractual good faith where it reveals an intent to cause undue harm.

Covid funding on private accounts: embezzlement to the detriment of the state not configurable

The Sixth Criminal Chamber of the Supreme Court, in ruling no. 22119/2021, affirmed that in the matter of financing aimed at supporting enterprises affected by the Covid-19 pandemic, the crime under Art. 316-bis of the Criminal Code in the case where, following the disbursement by a credit institution of a loan assisted by the guarantee issued by SACE S.p.A., pursuant to d.l. no. 23/2020, as converted by l. no. 40/2020, the amounts disbursed are not earmarked for the purposes for which said funding is intended by law, but end up in private accounts of the financed entity.

This funding, in fact, is not provided directly by the state or other public agency, but by a private entity. Moreover, the mere “diversion of the disbursed sums from the legal purpose for which they are intended, unaccompanied by the breach of the obligation to repay the disbursed sums, cannot result in the activation of the public guarantee,” with the result that such conduct is intended to be relevant only in the context of the main loan relationship.