The retention exception

Continuing in our discussion concerning the right of retention, it seems appropriate to deal with a question, relevant to doctrine and jurisprudence, namely whether the exception of retention can be asserted in the judgment of release or in execution, or indifferently in both.

The traditional view, which goes back to Article 1152 of the Civil Code, is for admissibility in the judgment of cognition only, in which one should, consequently, give that evidence in general of the improvements made to the land by the tenant, as provided for in Article 15 of the Law on Agrarian Contracts.

It is a view that, through a rigorous examination of the grounds that doctrine and jurisprudence have deemed suitable for bringing an objection under Article 615 CCP, sees retention as an exception that cannot be assimilated to any of the aforementioned grounds.

The ‘opposite view is, on the other hand, for the admissibility of the exception in the executive branch only, since it is argued that the tenant has, in the court of cognition, no grounds to oppose the legitimacy of the requirements (buyer small farmer owner, etc.) of the landlord.

It should be pointed out that according to doctrine and jurisprudence, perplexity arises as to whether retention can also be objected to in enforcement, once such a defense has not been exhausted in the judgment for release. The aforementioned perplexities have their origin in the particular nature of the right of retention, which is conceived as a form of self-defense, of essentially passive defense that affects the competing right of release, not so much by opposing the prerequisites on which it is based, but by asserting a right that is overriding and such as to paralyze or suspend the aforementioned right of release.

It seems, therefore, that the sense and meaning of this rule is undoubtedly to grant protection based on grounds that could not be asserted previously or elsewhere and such, in any case, as to challenge the legitimacy of the enforcement title. If, therefore, this is the rationale of Article 615 of the Code of Civil Procedure, one cannot but be opposed to the thesis of the enforceability of retention even in execution. The tenant can and must use his exception when he is sued for the release of the property, and if he fails to implement this defense, he is precluded thereafter from any opposition. It is all too obvious that he will only lose his right to retention, all his rights to any claim derived from the improvements made remaining unaffected.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo