The agricultural entrepreneur in the civil code

The figure of the agricultural entrepreneur is regulated by Articles 2135 of the Civil Code, under which, following the substantial amendments made by Legislative Decree. n. 228 of 2001, an agricultural entrepreneur is either a person who carries out-even separately-the activities of “cultivation of the land, forestry, animal husbandry,” i.e., the so-called essential or main agricultural activities, or a person who is engaged in the so-called “related activities” to the main activities.

In Paragraph 2 of the aforementioned Article 2135 of the Civil Code, it is clarified that cultivation of land, silviculture and animal husbandry are defined as activities directed to the care and development of a biological cycle or a necessary stage of the cycle itself, of a plant or animal nature that use or may use the land, forest, or fresh, brackish or sea water.

It follows that it is not necessary to be considered an agricultural entrepreneur, in the civil law sense, for the activity to be carried out on the land or in close connection with the land factor, but it is sufficient that it involves a biological cycle of an animal or plant.

In fact, the pre-reform regulatory set-up placed a strong emphasis on the necessity of direct cultivation of the land, inextricably linking the figure of farmer, and even more so if concomitant with that of rancher, to the direct exploitation of the “ager,” that is, the land.

Accomplice to the almost complete dissolution of the link between the farmer and the land was not only the gradual technological development since the drafting of the 1942 code, but also the regulatory developments in the agricultural field that clarified that the phrase “cultivation of the land” could only be interpreted as “cultivation of plants.” On the basis of this well-established logical interpretation, in fact, it was also recognized, for example, as an agricultural activity the cultivation of mushrooms in caves or sheds set up for the purpose (Law No. 126 of April 5, 1985), and it was also possible to qualify as a lease of rustic land that having as its object land with fixed greenhouses (Article 14, Law No. 203 of May 3, 1982).

Thus following, therefore, raising chickens in battery cages, growing plants in water, as well as-more generally-all those activities that result in caring for a stage in the biological cycle of an animal or plant are also considered essential agricultural activities.

Agricultural activities certainly include silviculture, which is understood to be the activity of processing the forest.

Agricultural activities by connection, on the other hand, are all those activities always carried out by the farmer that are in themselves commercial, but because they are carried out by a farmer, they also qualify as agricultural.

Specifically, related activities include the handling, preservation, processing, marketing and exploitation of products as long as they are obtained mainly from the cultivation of the land, forest or animal husbandry, as well as all those activities directed to the provision of goods or services through the predominant use of equipment or resources of the farm that are normally used in agricultural activity.

To summarize, according to current regulations, therefore, one who engages in the cultivation and subsequent harvesting of grapes and contemperation in the production and sale of wine can certainly be considered an agricultural entrepreneur, all provided that such wine is produced predominantly from its grapes.

Identical consideration, can be made with reference to the activity of a nurseryman, if the object of the activity is limited to the production and sale of pots and fertilizers, but not garden tables or chairs.

One exception is for cooperatives of agricultural entrepreneurs and their consortia, if they use for the conduct of their business mainly products supplied by their members and associates.

Equivalent to a farmer is a fish farmer who holds a fishing license and engages in fishing and related activities on a professional basis, either individually or in association.

Further change from the past concerns the regulatory provision of the entrepreneur’s obligation to register in the business register, albeit in a special section compared to other entrepreneurs. On the other hand, it remains firm, even to this day, that the agricultural entrepreneur cannot go bankrupt; however, it should be noted that the latest reforms of bankruptcy law, not without some doubt, seem to be moving toward the elimination of this exemption: the exemption from bankruptcy proceedings is rooted in the risk involved in farming due to the nature of the activity carried out.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo