Revocability of denuntiatio

Agrarian preemption, both that which accrues to the neighboring owner and that which accrues to the tenant farmer, is nothing more than the right recognized in the heads of the aforementioned individuals to be preferred to others, on equal terms, in the purchase of an agricultural property, should the owner decide to sell it.

The common rationale of the two institutions is found in the desire to encourage situations suitable for the achievement of better land profitability, resulting either from the tenant’s previous cultivation of the land offered for sale or from its contiguity with agricultural land already under stable cultivation, and with a view to the formation of larger direct-cultivation enterprises, from the perspective of the confined owner.

The relevance of the purposes that the legislature has set as the basis for the right of pre-emption has recently led the Supreme Court to rule on the effectiveness of the revocation of the proposal by the selling owner (so-called denuntiatio), in relation to the term provided ex lege for acceptance by the pre-emptionist(ref. Cass. Civ., Sec. III, June 22, 2016, no. 12883).

Article 8, paragraph 4, l. 590/65, the pivotal norm of agrarian preemption-to which Article 7 of the later l. 817/71 refers-provides for the requirements of denuntiatio and the manner of notification, but also for the obligation of the preemptive farmer to “exercise his right within the period of 30 days.”

The revocation of the denuntiatio originated from the reconsideration of the Estate, which at a time after the notification of the proposed sale had unilaterally decided that it no longer wished to proceed with the sale of the fund. Sale for which, moreover, the claimant had already sent by registered mail his acceptance. However, the acceptance of the proposal had not yet been received by the proposer at the time the proposal was withdrawn.

On this point, the Court has preliminarily clarified that, in the case at hand, the sending of acceptance before the expiration of the 30-day deadline is not capable of affecting the revocability of the proposed sale before the expiration of the aforementioned deadline, since it pertains – if anything – to the merely procedural profile, but certainly not to the substantive one that is the main subject of the dispute (Cass. n. 12883/2016, cited).

On the substantive level, in fact, although one of the characteristics of the right of ownership is to allow its holder to freely use the property, that is, to fully and exclusively enjoy and dispose of it (Article 832 of the Civil Code), this cannot adversely affect the right recognized to the prelazionary who has already received the aforementioned proposed sale.

Recognizing the validity of the revocation of the proposal communicated before the expiration of the full thirty-day period provided ex lege for the exercise of the right recognized in the head of the prelazionary, would undermine the right itself by depriving the entitled person of the opportunity to use the full period to properly evaluate and freely and consciously determine about the possible acceptance(cf. Cass. n. 12883/2016, cited).

As repeatedly clarified, if for the exercise of the right of pre-emption the law grants a certain term “it is logical to assume that during the pendency of the same, the owner remains bound pending the determination of the holder of the right“(cf. Cass., S.U., no. 5359/1989), thus sanctioning the irrevocability of the denuntiatio for the entire duration of the thirty-day term(cf. Cass. n. 12883/2016, cited).

In fact, the said proposal is subject to the regulatory scheme arising from the combined provisions of Articles 1323 and 1329 of the Civil Code. A factual prerequisite is, therefore, the applicability of the general rules of the code to all contracts, even where they do not belong to a particular type (Article 1323 of the Civil Code), including that relating to the irrevocable proposal referred to in Article 1329 of the Civil Code, with the specification that in the case at hand the obligation to keep the proposal firm does not derive from the proponent’s will, but is expressly provided for by law (cf. Cass No. 10429/1991).

The proposal for sale sent by the Property and received by the prelamented direct grower – given the existence of all the requirements stipulated by law – cannot, therefore, be revoked before the thirty days stipulated by Art. 8 l. 590/65, as constituting an irrevocable proposal under Article 1329 of the Civil Code.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo