The farming family

The cultivating family, an institution taken into consideration today, as well as in other regulations of the agricultural sector is also dealt with in the agrarian law, which in providing for preemption recognizes its existence.

The rules on agrarian contracts state, in fact, that in the presence of a cultivating family business, the lease relationship and any other agrarian relationship “shall be between the grantor and the cultivating family, which shall be represented vis-à-vis the grantor, if the latter so requests, by one of its family members” (ref. Article. 48 of the law of May 3, 1982, no. 203).

It is necessary to point out how, previously, the Supreme Court, in a well-established guideline, held that the right of first refusal was only vested in the direct farmer who held the lease, and not in the family members who collaborated with him (ref. Cass. March 12, 1983, no. 1875). Moreover, case law has reaffirmed this principle, stating that the new rule, Art. 48, does not apply to rental relationships already in progress at the time of its enactment (ref. Cass. May 16, 2003, No. 7641; Cass. June 22, 2001, No. 8598).

In view of the above, it seems to be possible to conclude that after the enactment of the law of May 3, 1982, no. 203, the cultivating family has obtained its recognition: the tenant’s right of first refusal is, today, recognized to the cultivating family and not only to the head of the family who is formally shown as the holder of the lease.

However, it is regrettable to note that the aforementioned recognition is uncertain when referring to the scope and limits within which it will be able to operate; in fact, it is unclear whether the right of first refusal belongs to the cultivating family as a whole, or to each of the individuals participating in the cultivation of the land as members of the cultivating family.

Moreover, it seems appropriate to point out that family members who provide their labor in the normal running of the land are considered members of the farming family, when the farming activity is carried out by the family members jointly and continuously (ref. Cass. February 4, 1993, no. 1382; Cass. December 13, 1986, no. 7468) and this even if the family member(s) is also partly engaged in other activities (ref. Cass. August 2, 1995, no. 8444).

Moreover, doubts increase when one considers that while, often in the past, doctrine and jurisprudence have equated the farming family with the simple partnership. Today, however, they consider it more appropriate to liken this institution to the family business, identified in Article 230-bis of the Civil Code.

The issue becomes even more complicated when noting how the alleged recognition and the very existence of the cultivating family seem to have had limited impact in the legal system: although more than 30 years have passed since the Law on Agrarian Contracts came into force, there are no Supreme Court rulings that have expressly recognized the right of first refusal, either to the cultivating family or its members.

Further confirmation of the lack of consideration given to the cultivating family by the legislature can be found in the copious case law, which, on the subject of the neighbor’s right of first refusal, has explicitly ruled out that the right of first refusal can be extended to members, not co-owners, of the cultivating family. This is because, in this case, the right would disregard the existence of an agrarian contract, with the obvious corollary that Article 48 of Law No. 48 of May 3, 1982, will not apply. 203 (ref. Cass. March 26, 1999, no. 2896; Cass. March 26, 1990, no. 2424; Cass. May 2, 1990, no. 3622; Cass. June 25, 1988, no. 4299; Cass. February 23, 1988, no. 1911; Cass. December 13, 1986, no. 7474; Cass. March 12, 1983, no. 1875; Cass. August 26, 1982, no. 4718; Cass. January 15, 1981, no. 354).

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo