Distinction between real action of revenge and personal action of restitution. Evidence necessary for the two distinct actions. Different assumptions.
THE SUPREME COURT OF CASSATION
SECOND CIVIL SECTION
Composed of the Honorable Magistrates:
Dr. Vittorio VOLPE – President –
Dr. Giovanni SETTIMJ – Rel. Advisor –
Dr. Umberto GOLDONI – Advisor –
Dr. Ettore BUCCIANTE – Advisor –
Dr. Sergio DEL CORE – Councilor –
pronounced the following
JUDGMENT
on the appeal brought by:
FEDERICI COSTANTINO, electively domiciled in ROME VIA ORTI DELLA
FARNESINA 126, at the office of the lawyer STELLA RICHTER GIORGIO,
who defends it, fair delegation in deeds;
– appellant –
against
STAFFIERI ARGIA, electively domiciled in ROME VIA G. ZANARDELLI
23, at the office of the lawyer FILIPPUCCI FABRIZIO, who
defends her, correct delegation in documents;
– counter-appellant –
against sentence no. 15982-97 of the Court of ROME, filed on
09.10.97;
having heard the report of the case carried out in the public hearing of
01/24/00 by the Councilor Dr. Giovanni SETTIMJ;
having heard the lawyer STELLA RICHTER Giorgio, defender of the appellant who
requested that the appeal be accepted;
having heard the lawyer VALENZA Dino by proxy of the lawyer. FILIPPUCCI, dep.
in hearing, defender of the defendant who requested the rejection of the
appeal;
having heard the Prosecutor in the person of the Deputy Attorney General Dr.
Rosario RUSSO who concluded for the rejection of the appeal after
correcting the motivation pursuant to art. 384, 1 co..
FACT
Conduct of the trial
With sentence of 9-15.1.1992, the magistrate of Rome, in accepting the request proposed by Costantino Federici against Argia Staffieri, condemned the latter to immediately release the actor the stable at issue.
Staffieri appealed against this decision, deducing the nullity of the first instance sentence due to violation of the adversarial principle; the omitted, contradictory and insufficient motivation, as well as the incorrect evaluation of the documents in the case; again, the incorrect configuration of the existence of a loan in the absence of the constituent elements thereof; the acceptance, in the end, of the plaintiff’s request in the absence of the necessary conditions.
Federici was formed by resisting the burden and asking for its rejection.
With sentence dated 10-9-1997, the court of Rome – considered the first judge’s belief that he could ignore, for the purposes of the decision, the lack of proof regarding the ownership of the property right by Federici as erroneous; that the plaintiff had intended to propose an action for the release of property for occupation without title, and not also that of personal restitution pursuant to art. 1809 cc; that Federici had not provided any proof of his right of ownership, which was also contested by Staffieri – in accepting the appeal, it rejected Federici’s original request due to lack of proof regarding active legitimacy.
Federici appealed against this decision to the Supreme Court with a single complex reason.
Staffieri resisted with a counter-appeal.
Reasons for the decision
The appellant – denouncing violation and false application of articles. 948 and 1809 cc, 99, 100, 183, 184, 292, 353 cpc as well as lack of motivation on a decisive point of the dispute, all with reference to the art. 360 nos. 3 and 5 cpc – regrets that the court of Rome rejected the proposed application considering that he had not provided proof of ownership of the property right and that this proof was necessary, drawing elements of judgment, for the qualification of the action as he claims, exclusively from a formal reading of the summons without considering the substantial content of the claim advanced, deducible both from the situation deduced in the case and from the clarifications formulated during the investigation, from which the existence emerged, among the set off, of a loan relationship, upon termination of which the borrower would have had to return the asset, in accordance with what was requested with the proposed personal restitution action, which does not require proof of ownership of the thing, which is instead necessary for the claim action; furthermore, he has not deduced said evidence, even if possible, from the results of the investigation.
The reason deserves acceptance.
In exercising the power of interpretation and qualification of the request, the judge of merit, who is not influenced by the formula adopted by the party, has the power, but also the duty, to ascertain and evaluate the substantial content of the claim, which can be deduced not only from the literal tenor of the documents but also from the nature of the events deduced and represented by the requesting party and from any clarifications formulated during the proceedings, as well as taking into account the measure specifically requested, with the sole limit, however, of respect the principle of correspondence of the ruling to the request and not to automatically substitute a different action for the one formally proposed.
Where these principles are violated – and, therefore, an error in proceeding is reported, such as the ruling on a question which is claimed to be different from the one actually proposed – the Court of Cassation has the power-duty to proceed directly with the examination and interpretation of procedural documents and, in particular, of the requests and deductions of the parties.
In the present case, already upon reading the summons introducing the judgment it was evident that Federici had intended to carry out not a real action for vindication but rather a personal action for release for detention sine titulo, an action which became even better clarified during the investigation with the clarification that the defect in the title of detention was justified by the withdrawal – permitted ad nutum by the art. 1810 CC and in any case, if we want to consider the term connected with the specific need of the counterparty for which the use of the asset had been granted, from the disappearance of the need itself,
The court therefore not only failed to evaluate all the elements necessary for the qualification of the action, but also arbitrarily replaced the personal action brought with a real action which the plaintiff had not intended to promote and in view of which he had not, obviously, he did not even prepare adequate defenses and thus also remained harmed in the relevant right.
Nor is it helpful to assume that the contestation by the defendant of the plaintiff’s property right can justify the transformation of an ab origine action formally and substantially proposed as personal into a real action, with the consequent change in the object of the proof from the non-existence (*) or the former’s ownership right no longer exists due to the existence of the latter’s ownership right, not only because, in this case, Staffieri did not oppose Federici’s ownership right with its own autonomous and distinct ownership title over the asset controversial but limited itself to objecting that Federici had not proven his right of ownership,which would already be enough to exclude the possibility of changing the personal action into a real action also for that part of the jurisprudence that recognizes this possibility but only where the defendant has resisted the release action by opposing his own autonomous ownership title to the property (Cass. 20.3.99 n. 2603, 2.6.98 n. 5397), but also because the latter thesis itself is not, in itself, acceptable.
According to the consolidated jurisprudence of this Court, in truth, claims action and restitution action, although both tend towards the same practical result of recovering the material availability of a specific asset, have different nature and conditions: with the first, of a real, the plaintiff assumes that he is the owner of the property and, not being in possession of it, takes action against anyone who actually has possession of it in order, upon recognition of his right of ownership, to regain possession; with the second, of a personal nature and which has its basis in the original non-existence or subsequent loss of a right to possession of the property by whoever currently has it, the plaintiff does not aim to obtain recognition of his right of ownership, of which he does not have to provide proof,
It is true that this same Court has sometimes stated that, in the case of personal action aimed at obtaining the release of a property occupied without title or on a precarious basis, the contestation of the plaintiff’s right of ownership by the defendant with the deduction of his opposing dominion right, even if for the sole purpose of obtaining the rejection of the adverse application and not also the verification of the attached title of ownership, transforms the personal action into a real action, from the moment that the judge must decide on the existence of the property right claimed by one party and denied by the other (Cass. 2.6.98 n. 5397, 26.9.91 n. 10073); to this orientation, however, others oppose it for which either the request aimed at obtaining the removal of a situation detrimental to property rights, not accompanied(*) by the simultaneous request for verification and declaration of the right in rem, falls outside the scope of real actions and takes on the character of a personal reinstatement action in a specific form pursuant to art. 2058 CC (Cass. 18.7.91 n. 7984), i.e. the defense of the defendant, who claims to be the owner of the thing in dispute, is not suitable to transform the personal action proposed against him into reality (Cass. 9.9. 98 n. 8930, 16.8.90 n. 8326, 5.10.78 n. 4454, 4.10.71 n. 2713, 2.8.68 n. 2770, 3.2.68 n. 357), and similar guidelines, at least the second one which is intended to follow, appear worthy of greater consensus than the previous one. not accompanied(*) by the simultaneous request for verification and declaration of the right in rem, goes beyond the scope of real actions and takes on the character of a personal action for reinstatement in a specific form pursuant to art. 2058 CC (Cass. 18.7.91 n. 7984), i.e. the defense of the defendant, who claims to be the owner of the thing in dispute, is not suitable to transform the personal action proposed against him into reality (Cass. 9.9. 98 n. 8930, 16.8.90 n. 8326, 5.10.78 n. 4454, 4.10.71 n. 2713, 2.8.68 n. 2770, 3.2.68 n. 357), and similar guidelines, at least the second one which is intended to follow, appear worthy of greater consensus than the previous one. not accompanied(*) by the simultaneous request for verification and declaration of the right in rem, goes beyond the scope of real actions and takes on the character of a personal action for reinstatement in a specific form pursuant to art. 2058 CC (Cass. 18.7.91 n. 7984), i.e. the defense of the defendant, who claims to be the owner of the thing in dispute, is not suitable to transform the personal action proposed against him into reality (Cass. 9.9. 98 n. 8930, 16.8.90 n. 8326, 5.10.78 n. 4454, 4.10.71 n. 2713, 2.8.68 n. 2770, 3.2.68 n. 357), and similar guidelines, at least the second one which is intended to follow, appear worthy of greater consensus than the previous one. goes beyond the scope of real actions and takes on the character of a personal reintegration action in a specific form pursuant to art. 2058 CC (Cass. 18.7.91 n. 7984), i.e. the defense of the defendant, who claims to be the owner of the thing in dispute, is not suitable to transform the personal action proposed against him into reality (Cass. 9.9. 98 n. 8930, 16.8.90 n. 8326, 5.10.78 n. 4454, 4.10.71 n. 2713, 2.8.68 n. 2770, 3.2.68 n. 357), and similar guidelines, at least the second one which is intended to follow, appear worthy of greater consensus than the previous one. goes beyond the scope of real actions and takes on the character of a personal reintegration action in a specific form pursuant to art. 2058 CC (Cass. 18.7.91 n. 7984), i.e. the defense of the defendant, who claims to be the owner of the thing in dispute, is not suitable to transform the personal action proposed against him into reality (Cass. 9.9. 98 n. 8930, 16.8.90 n. 8326, 5.10.78 n. 4454, 4.10.71 n. 2713, 2.8.68 n. 2770, 3.2.68 n. 357), and similar guidelines, at least the second one which is intended to follow, appear worthy of greater consensus than the previous one.
In fact, first of all, it is necessary to recall what has already been highlighted above regarding the prohibition for the judge to change ex officio the title of the claim, so that the dispute can only be decided with exclusive reference to the title deduced by the interested party and to the legal regulations applicable it inherent; secondly, consider that, by adhering to the opposite opinion, one would arrive at the unacceptable consequence of considering the simple challenge of the defendant as a suitable procedural tool to determine the immutation of the nature, as well as of the action, also of the burden of proof incumbent on the the plaintiff, imposing on the latter, with a distortion of the defense prepared in relation to the different proposed action, a much more onerous test, the diabolical probatio of revindica,
With the contested sentence, the court of Rome, not adhering to the above principles and, among other things, assuming that Federici had to prove the right of ownership of the property requested for restitution on the basis of Staffieri’s simple exception regarding the lack of such proof, has committed the violations of the law contested by the appeal in question which must therefore be accepted.
The case must, therefore, be sent back for new evaluation to another judge of second instance who, given the new procedural rules introduced by Legislative Decree 19.2.98 n. 51, must be identified in the court of appeal (Cass. SS. UU. 19.5.2000 on rec. 2515-98 but already 19.11.99 n. 12838) pursuant to art. 385 CPC is also required to provide for the costs of the legitimacy proceedings.
PQM
pqm
THE COURT accepts the appeal, dismisses it and refers it, including costs, to the Court of Appeal of Rome.
Thus decided in the Council Chamber 24.1.2000.
