THE SUPREME COURT OF CASSATION

THIRD CIVIL SECTION

Composed of the Honorable Magistrates:

Dr. VARRONE Michele – President

Dr. FILADORO Camillo – rel. Councilor

Dr. FEDERICO Giovanni – Councilor

Dr. VIVALDI Roberta – Councilor

Dr. SPIRITO Angelo – Councilor

pronounced the following:

sentence

on the appeal proposed by:

REGION OF BASILICATA, in the person of the legal representative, the President of the Regional Council, BF, electively domiciled in ROME, VIA NIZZA 56, at THE REPRESENTATIVE OFFICE OF THE BASILICATA REGION, represented and defended by the lawyers VIGGIANI MIRELLA, DI GIACOMO VALERIO; correct delegation on the sidelines of the appeal;

– appellant –

against

LG, electively domiciled in ROME, CORSO XXI APRILE 61, at the office of the lawyer SORBELLO SALVATORE, represented and defended by the lawyer LOPES ETTORE duly delegated on the sidelines of the counter-appeal;

– counter-appellant –

and against

COM RIONERO IN VULTURE;

– ordered –

against sentence no. 395/2004 of the COURT of MELFI, issued on 10/08/04, filed on 07/09/2004; RG. 871/2002;

having heard the report of the case carried out in the public hearing of 09/22/2008 by the Councilor Dr. FILADORO CAMILLO;

having heard the Public Prosecutor in the person of the Attorney General Dr. IANNELLI DOMENICO, who asked for the appeal to be accepted.
 

Conduct of the process
With sentence dated 10 August – 7 September 2004, the Court of Melfi rejected the appeal brought by the Basilicata Region against the decision of the Justice of the Peace of Rionero n. 29 of 2001, which had condemned the Basilicata Region and the Municipality of Rionero in Vulture to pay, jointly and severally, by way of undue enrichment, to the Surveyor. LG the sum of L. 2,699,000, for the activity carried out by the professional as part of a professional assignment (conferred upon him by the Municipality itself) to ascertain the extent of the damages suffered by private individuals following the earthquake of 5 May 1990.

The Basilicata Region has appealed to the Court of Cassation against this decision supported by a single reason.

L. resists with a counter-appeal.

The Municipality of Rionero nel Vulture did not provide any defense in this instance.
 
Reasons for the decision
First of all, the objection of inadmissibility of the appeal proposed by Law must be rejected.

The defendant, from a first point of view, deduces the inadmissibility of the appeal, observing that the contested sentence is based on various reasons, not all of which are specifically criticized by the appellant Region.

Censorship is unacceptable.

The principles enunciated by the counter-appellant are perfectly in line with the consolidated teaching of this Court.

According to this guideline, in the case in which a sentence (or part of it) is challenged with an appeal to the cassation which is based on several reasons, all independently capable of supporting it, it is necessary, in order to reach the cassation of the sentence, not only that each of them has been the subject of specific criticism, but also that the appeal has a positive outcome in its entirety with the acceptance of all the complaints, so that the specific purpose of this means of appeal is achieved, which must aim at quashing the sentence, “in toto” or in its single head, for all the reasons that independently support one or the other.

It follows that it is sufficient that even just one of the aforementioned reasons has not been the subject of censure, or, despite having been challenged, is rejected, for the appeal or the ground of challenge against the single head of it to be rejected in its entirety. , the criticisms against the other reasons underlying the sentence or the contested charge becoming inadmissible, due to a lack of interest (Cass. 8 August 2005 n. 16602).

However, in the present case, the counter-appellant does not expressly indicate what the autonomous “ratio decidendi” not contested by the appellant Region would be.

The inadmissibility of censorship follows.

From a different perspective, the counter-appeal deduces the failure to specifically indicate the documents filed by the appellant together with the cassation appeal.

The appeal to cassation, observes the counter-appellant, contains only copies of sentences not relevant to the subject matter of the judgment in addition to the file of part of the degrees of merit.

All this could not be considered sufficient, since the documents already deposited in the substantive phases must, according to the defendant, be fully redeposited also in the legitimacy phase, with the indication of the leaflet, and be expressly reproduced in the context of the appeal, under penalty of inadmissibility. .

Among other things, the complaint which was the subject of the single ground of appeal did not even contain the precise indication of the individual grounds and complaints, with the identification of the principle of law that was believed to have been violated and of the articles of law relating and distinct to each issue. applicable, thus not allowing this Court to be able to exercise its function.

These complaints are also baseless.

The contested sentence was filed on 10 August 2004.

Therefore, the new rules dictated by Legislative Decree no. are not applicable “ratione temporis”. 40 of 2006.

The art. establishes 366, paragraph 1, n. 4, (with a completely new provision introduced by decree no. 40 of 2006 and therefore applicable only to appeals against sentences and rulings published starting from 2 March 2006) that the appeal must contain, under penalty of inadmissibility, the specific indication of procedural documents, documents and collective labor contracts or agreements.

In reality, even before the recent reform, the jurisprudence of the Supreme Court was already consolidated in affirming the existence of a burden on the party to reproduce in the appeal the content of the document whose failure to examine it was censured, in application of the principle of the self-sufficiency of the appeal .

However, according to the previous regulations, a second production of all the documents already produced in the substantive phases was not required. And in truth, this burden is not even required now by the new provisions.

According to the most rigorous jurisprudential approach (Cass. n. 12239 of 2007), with reference to the procedural regime prior to Legislative Decree no. 40 of 2006, to integrate the requirement of the so-called self-sufficiency of the ground of appeal to cassation – concerning, pursuant to art. 360 cpc, n. 5, (but the same thing applies when the evaluation had to be made for the purposes of examining a defect pursuant to art. 360 cpc, n. 3, or a defect integral to the error in proceeding pursuant to n. 1, 2 and 4 of that rule), the evaluation by the Judge of merit of documentary evidence – it is necessary that this content is reproduced in the appeal, and that the procedural seat of the trial of merit in which this production took place and the place in which in the official file or in those of the parties,

The need for this double indication, based on self-sufficiency, is justified in light of the provision of the old art. 369 cpc, paragraph 2, n. 4, which sanctioned (as, indeed, now the new one) the failure to produce the documents founding the appeal, which could be produced (as they were produced in the substantive phases) pursuant to art. 372 cpc, paragraph 1.

On the basis of these principles, applicable to the present case, it must therefore be excluded that the appellant Region has incurred the alleged inadmissibility for not having taken steps to re-deposit the documents already produced before the Justice of the Peace and the Court, the contents of the documents on which the appeal is based and their location having been recalled in the appeal to cassation.

Lastly, the Law deduces a substantial lack of interest on the part of the Basilicata Region in challenging the appeal sentence of the Court of Melfi.

In fact, since the Municipality – condemned jointly and severally with the Region – had given implicit acquiescence to the appeal sentence which condemned the two entities jointly and severally to pay the sum awarded to the professional, having also not provided for its own defense at appeal level, it was “lacking that subjective and objective situation constituted by an interest in taking action in order to obtain judicially necessary protection of a right, or at least, the removal of a state of legal uncertainty, since the contested sentence of the Court had already come, for this same, to acquire the force of res judicata against the Municipality, which could well satisfy the same right as specifically activated alternatively by the technician, with a specific prospect.

Acquiescence to the sentence precludes appeal pursuant to art. 329 cpc, consists in the acceptance of the sentence, i.e. in the manifestation by the losing party of the will not to appeal, which can take place both in an express and tacit form: in the latter case, acquiescence can be considered to exist only when the interested party has implemented acts from which it is possible to deduce, in a precise and unambiguous manner, the intention not to conflict the legal effects of the ruling, i.e. the acts themselves are absolutely incompatible with the desire to make use of the appeal. (Cass. 7 February 2008 n. 2826).

Apart from this observation, it is hardly necessary to remember that the condemnation of the Region jointly and severally determined the emergence of a direct and immediate interest of the entity in the appeal (even in the case of express acquiescence of the other defendant condemned jointly and severally). : the Municipality of Rionero in Vulture).

The objection of inadmissibility of the appeal must therefore be rejected.

The appeal proposed by the Region can now be examined.

With the sole reason the Basilicata Region denounces violation and false application of the articles. 2041 and 2042 cc, omitted, insufficient and contradictory motivation regarding a decisive point of the dispute, pursuant to art. 360 cpc, nos. 3 and 4, as well as failure to pronounce on a decisive point of the dispute, in violation of the art. 112 cpc.

The appeal judges had not ruled on the lack of any other action to compensate for the damage complained of.

In the present case, the professional could have, and should have, taken direct action against the citizens who had requested verification of the damage suffered by the buildings they owned following the earthquake, on which the costs relating to the investigations ordered fell. and/or the Ministry for the coordination of civil protection, a state body required by law to provide reimbursements, which can be financed with the Civil Protection Fund.

Furthermore, the Judges themselves had not expressly ruled on the “utilitas” of the services rendered by the Surveyor. L., deducing an implicit recognition of the utility derived by the Region from the fact that the survey forms filled out by the professional had been delivered to the offices of the body, which had proceeded to calculate the fees due to the Municipality (or whoever was responsible) .

In this way, however, the Judge of Appeal had not considered that the mere fact of use is not sufficient to constitute an implicit recognition of the “utilitas” by the Public Administration,

This proof certainly could not be deduced from the circumstances highlighted by the Court, i.e. from the delivery of the survey forms presented by the professionals to the regional offices or from the calculations of the compensation due to them by the regional officials.

In other decisions, the same Court of Melfi had recognized the absence of an actual and objective advantage derived from the appellant body, accepting the defensive thesis of the Region (which had argued that the only subjects benefited from the activity carried out by L. would have been requesting citizens) but not entitled to reimbursement of costs related to the assessment of damage to buildings or the Ministry for the coordination of Civil Protection.

Observe the College:

The appeal deserves acceptance under both aspects of censorship reported.

From the point of view of subsidiarity, the principle according to which:

“The subsidiary nature of the action of unjust enrichment, sanctioned by art. 2042 of the civil code, means that said action cannot be brought not only when another typical action exists that can be experienced by the injured party against the enriched party, but also when there is originally an action that can be experienced against persons other than the enriched party who are obliged by law or by contract” (Cass. 27 June 1998 n. 6355).

In the present case, this assessment was completely lacking, hence the acceptance of the first aspect of complaint (which denounces failure to pronounce on a decisive point of the controversy, regarding the assessment of the existence of another action).

Furthermore, the insufficiency and contradictory nature of the motivation relating to the “utilitas” obtained by the Region as a consequence of the activity carried out must also be noted.

The scant motivation of the contested decision simply mentions the fact that it was the Region itself that had given the task to L., as well as to the other professionals, and that the survey forms had then been delivered to the competent offices of the institution,

This behavior, in the opinion of the Judge of Appeal, would in itself constitute only recognition, albeit implicit, of the “utilitas” of the service, with consequent compensation obligation on the Region.

This is a completely apodictic statement, as the elements on which the expressed belief was based are not indicated, and, in any case, erroneous in both respects taken into consideration. (Cass. 11133 of 27 July 2002).

The action of unjust enrichment against the PA differs from the ordinary one, as it presupposes not only the material fact of the execution of a work or a service advantageous for the public body, but also the recognition by the latter , of the usefulness of the work or service.

This recognition can take place explicitly, i.e. with a formal act (which, moreover, can be assisted by the requirements required to make it a valid and effective administrative act or it can also be lacking in the required formalities and controls, as in the case in which the supervisory body cancels it), or implicitly, i.e. through the use of the work or service consciously implemented by the representative bodies of the entity.

The recognition of the usefulness of the work or service performed by the third party, which constitutes a requirement for the acceptance of the action of unjustified enrichment against the Public Administration, replacing the enrichment requirement provided for by the art. 2041 cc, in inter-private relationships, can also result implicitly from acts or behaviors of the Public Administration itself from which a positive judgment can be unequivocally deduced regarding the advantage or usefulness of the service, therefore also in any form the use of the service consciously implemented by the Public Administration, provided that the expression of will is legally relevant, “id est” comes from institutionally representative bodies; judgment which, due to the limits set by Law 20 March 1865, n. 2248, art. 4, Annex E, is reserved exclusively for the Public Administration itself and cannot be carried out in any respect by the ordinary Judge, who can only be called upon to ascertain whether and to what extent the work or performance of the third party has actually been used .

As Cass points out. 2312 of 2008, the action of unjust enrichment against the PA requires, as an essential condition, the recognition of the usefulness of the service, which cannot be deduced from the mere acquisition and subsequent use of the service itself, requiring an unequivocal, albeit implicit , expression of will in this regard, emanating from representative bodies of the administration concerned.

This is true even if – as this Court has already had occasion to observe, even recently with sentence. 2.10.98 n. 9795 – which the recognition of utility replaces, in the action pursuant to art. 2041 cc, promoted against the Public Administration, the enrichment requirement, this not necessarily requiring a content of direct capital increase but being able to consist of any advantage deriving from the use of the work or service, therefore also in a cost saving .

The contested decision lacks any clarification and motivation in this regard.

The appeal must ultimately be accepted with referral to another judge who will carry out a new examination, also providing for the costs of this proceeding.
 

————————————————– ——————————
PUBLIC ADMINISTRATION – UNNECESSARY ENRICHMENT – UNDEBTED   
PQM
The Court accepts the appeal.

The sentence is set aside and referred to the Court of Lagonegro, also for the costs of this cassation proceeding.

Thus decided in Rome, in the Council Chamber on 22 September 2008.

Deposited in the Chancellery on 14 October 2008.
 


From the point of view of subsidiarity, the principle according to which:

“The subsidiary nature of the action of unjust enrichment, sanctioned by art. 2042 of the civil code, means that said action cannot be brought not only when there is another typical action that can be brought by the injured person against the enriched person, but also when there is originally an action that can be experienced against persons other than the enriched person who are obliged by law or contract” (Cass. 27 June 1998 n. 6355).

In the present case, this assessment was completely lacking, hence the acceptance of the first aspect of complaint (which denounces the failure to pronounce on a decisive point of the dispute, regarding the assessment of the existence of another action).

Furthermore, the insufficiency and contradictory nature of the motivation relating to the “utilitas” obtained by the Region as a consequence of the activity carried out must also be noted.

The scant motivation of the contested decision simply mentions the fact that it was the Region itself that had given the task to L., as well as to the other professionals, and that the survey forms had then been delivered to the competent offices of the institution, which had calculated the compensation due to the technicians for the damage assessment activity carried out.

This behavior, in the opinion of the Judge of Appeal, would in itself constitute only recognition, albeit implicit, of the “utilitas” of the service, with consequent compensation obligation on the Region.

This is a completely apodictic statement, as the elements on which the expressed belief was based are not indicated, and, in any case, erroneous in both respects taken into consideration. (Cass. 11133 of 27 July 2002).

The action of unjust enrichment against the PA differs from the ordinary one, as it presupposes not only the material fact of the execution of a work or a service advantageous for the public body, but also the recognition by the latter , of the usefulness of the work or service.

This recognition can take place explicitly, i.e. with a formal act (which, moreover, can be assisted by the requirements required to make it a valid and effective administrative act or it can also be lacking in the required formalities and controls, as in the case in which the supervisory body cancels it), or implicitly, i.e. through the use of the work or service consciously implemented by the representative bodies of the entity.

The recognition of the usefulness of the work or service performed by the third party, which constitutes a requirement for the acceptance of the action of unjustified enrichment against the Public Administration, replacing the enrichment requirement provided for by the art. 2041 cc, in inter-private relationships, can also result implicitly from acts or behaviors of the Public Administration itself from which a positive judgment can be unequivocally deduced regarding the advantage or usefulness of the service, therefore also in any form the use of the service consciously implemented by the Public Administration, provided that the expression of will is legally relevant, “id est” comes from institutionally representative bodies; judgment which, due to the limits set by Law 20 March 1865, n. 2248, art. 4, Annex E, is reserved exclusively for the Public Administration itself and cannot be carried out in any respect by the ordinary Judge, who can only be called upon to ascertain whether and to what extent the work or performance of the third party has actually been used .

As Cass points out. 2312 of 2008, the action of unjust enrichment against the PA requires, as an essential condition, the recognition of the usefulness of the service, which cannot be deduced from the mere acquisition and subsequent use of the service itself, requiring an unequivocal, albeit implicit , expression of will in this regard, emanating from representative bodies of the administration concerned.

This is true even if – as this Court has already had occasion to observe, even recently with sentence. 2.10.98 n. 9795 – which the recognition of utility replaces, in the action pursuant to art. 2041 cc, promoted against the Public Administration, the enrichment requirement, this not necessarily requiring a content of direct capital increase but being able to consist of any advantage deriving from the use of the work or service, therefore also in a cost saving .

The contested decision lacks any clarification and motivation in this regard.

The appeal must ultimately be accepted with referral to another judge who will carry out a new examination, also providing for the costs of this proceeding.