Sales contract, warranty against defects or good functioning of the sold goods, ATP ante causam, Court of Cassation, II Civ. Sect., Judgment n. 58 of 04/01/2018

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Sales contract, warranty against defects or good functioning of the sold goods, ATP ante causam, Court of Cassation, II Civ. Sect., Judgment n. 58 of 04/01/2018

Essential lines of the arguments of the Supreme Court of Cassation


– applicant –


….. is …..

as well as against …


against sentence no. 3659/2012 of the CORTE D’APPELLO of MILAN, filed on 11/15/2012; having heard the report of the case carried out in the public hearing of 05/10/2017 by the Councilor … .; heard the P.M … that has concluded for the acceptance of the 2nd motive, rejection of the remaining motives of the appeal; heard the lawyer …., defender of the appellant who requested the acceptance of the appeal; heard the lawyer ….., defender of …, which is reported in the deposited documents.

– counter-current –

Exposition of the fact

With the citation of January 9, 2006 ……, at the outcome of the proceeding for ATP ante causam, it was agreed before the Court of Milan the ……, and, ……. and … Leasing spa, to be ascertained: – that the frame, object of the financial lease stipulated by the plaintiff with …. Leasing on November 18, 2003, was affected by defects and malfunctions; – that the defendants … .. had not been able to remedy the defect, despite the fact that they were obliged to do so, assuming the guarantee for defects and good functioning; consequently, he requested the defendants to be ordered jointly to replace the vehicle or, alternatively, to reduce the relative price, in addition to compensation for damages. The Court of Milan jointly condemned ….. to pay to Lamonaca the sum of …. euro as compensation for damages, as well as the return in favor of …. Leasing of the excess quota on the value of the asset, of …. euro, plus interest, and arranged that this amount was paid to … ..

The Court of Appeal of Milan, in reform of the sentence of first instance, rejected all the requests of the …..

The Territorial Court, in particular, upheld the exception of lack of passive legitimization of ……. and of …. spa, noting that no contractual relationship had occurred between these parties and Mr …; as a consequence of this, it excluded that the plaintiff was entitled to any guarantee action against the same and furthermore that the conditions existed for the applicability of the provisions of Presidential Decree 244/1988, neither possessing nor … nor the … Milan, the qualification of manufacturer of the vehicle, and not having been deduced in cause any of the damage provided by Article 11 of the aforementioned decree.

He also noted the forfeiture of … from the guarantee against …, not having shown that he had made the complaint, within eight days of the discovery of the defects, pursuant to and for the purposes of art. 1495 c.c.

Against this sentence, he appealed ….., relying on six reasons.

…. Milan and … Italy, as well as … spa resist with a counter-appeal, while … Leasing has not carried out defensive activities in this case.

The appellant also filed, in the proximity of today’s hearing, illustrative briefs pursuant to art. 378 cpc.

Considered in law

With the first ground of appeal the … denounces the violation of rules of law, in relation to the distinction between the guarantee of good functioning pursuant to art. 1512 c.c. and warranty for defects pursuant to art. 1490 according to art.360 n.3) Code of Civil Procedure, complaining that the Court erroneously affirmed the lateness of the complaint for defects, notwithstanding the existence not only of the malfunction, but also of the hidden defect. The plea is inadmissible due to lack of decisiveness, as it does not capture the ratio of the contested decision.

In fact, the relevance of the alleged distinction between the two different forms of guarantee, in relation to the ascertainment of the merits of the contested sentence, of the late denunciation, is still indicated, nor is it deducible from the content of the plea, there is evidence of the discovery of the vices on the part of the buyer on a date well before the complaint itself.

The second plea alleges the ruling of the contested judgment which stated the lack of passive legitimacy of … .. Milan and … .Italia spa, in relation to art. 360 n.3) cpc, deducting that, having detected the defect of legitimatio ad causam, the territorial court should have given rise to a ruling in the rite and not even ascertain, on the merits, the groundlessness of the application.

The reason has no merit. The Court has indeed established the defect of passive legitimacy of … .. Italy and …. Milan, because they had no contractual relationship with today’s applicant, and accepted the relative exception, raised by both parties.

In the presence of a specific and timely exception of the defendants, therefore, the distinction between the lack of legitimacy to causation, detectable ex officio and based on the same formulation of the applicant application, and lack of effective ownership of the relationship in question, situation which, according to the prospectus of the appellant, on the other hand, could be seen in the present case.

In any case, there is a lack of interest in asserting this question, of abstract attributable to one or the other of the rulings, in the presence of the territorial court, of the lack of a direct contractual relationship between today’s applicant and … Milan and … Italy.

The third plea, which is divided into two grievances, denounces, first, the omitted examination of the decisive fact for the judgment, constituted by the fact that the … Milan had repeatedly carried out maintenance interventions on the applicant’s means, and The other claims that a genuine contractual relationship arose from these interventions, which the Territorial Court erroneously excluded.

The grievances, which, as connected, must be examined together, are groundless. First of all, it should be noted that the Territorial Court specifically examined the fact that … Milan had repeatedly carried out maintenance interventions on the medium of …, in order to avoid the omission of the complaint complained of by the applicant.

The Court has also excluded, with merit assessment that can not be considered in the present proceedings, that ….. has tried, or attached, that the execution of the works had determined, or aggravated, the defects for which it is due, and affirmed that the execution of a repair activity does not constitute a constitutive element of the typical warranty of the seller.

This statute is in conformity with the law. In fact, it can not be considered that the guarantee of good functioning pursuant to art. 1512 of the Civil Code, can only be derived from “uses”, as stated by the applicant.

Nor does the further prospect of … appear to be shareable, which leads to the responsibility of … Milan autonomous contractual relationship, arising as a result of taking over the vehicle in order to carry out maintenance activities.

Considering that the application of today’s applicant concerns the guarantee for the existence of defects in the thing sold, the subsequent maintenance services performed by a person other than the seller are not capable of giving rise to the latter’s responsibility typical bond of the seller, such as the guarantee obligation from the vices (or of the good functioning) of the thing sold.

The assumptions and content of the different form of responsibility for non-compliance with the work contract are quite different, having as object the execution of repairs on the property, which is not however activated in the present proceedings.

The fourth reason denounces the violation of norms of law, in relation to the principle of passive legitimation, ex artt. 113 and 360 n.3) of the Code of Civil Procedure, as well as the omitted examination of a decisive fact, having regard to the responsibility of “social contact” against … Italy, to which the appellant had addressed, requesting the elimination of anomalies.

Even these grievances have no merit. As for the violation of the principles regarding the lack of passive legitimization, it must reiterate what has already been highlighted in relation to the first ground of appeal, having to consider the inadmissibility of the complaint, for lack of relevance. The further grievance pursuant to art. 360 n.5) cpc.

In fact, the Territorial Court specifically examined and assessed the position of … Italy and, with appropriate appreciation, considered that no contractual relationship had arisen with the current applicant. In relation to the configurability of a responsibility for “social contact” against … Italy, the novelty of the question must be affirmed, on which there is no statute of the contested sentence.

The fifth reason denounces the nullity of the sentence for non-congruous reason pursuant to art. 360 n.4) cpc, and violation of the law, as well as the omitted examination of a decisive fact, censoring the ruling of the contested ruling which affirmed the delay of the complaint made to the seller …, by tracing the knowledge of the vices already at the time when … he turned to …. Milan for their elimination.

According to the applicant’s statement, he, on one hand, denounced the malfunctioning of the vehicle to the seller …. already with a letter dated 21.4.2004, on the other hand he was fully aware of the defects only on the outcome of the filing of the Pre-Technical Assessment Report.

The reason is groundless. With regard to the first finding, it is noted that the letter attached to the appeal of today’s applicant can not be classified as a denunciation of the defects that are the subject of the present proceedings, since they are non-conformity and anomalies of a different nature.

The further prospect, according to which today’s applicant would have acquired only with the preventive technical assessment, an appreciable degree of objective knowledge of the severity of the defects and their causal derivation, was likewise groundless.

The Territorial Court in fact found that the objective awareness of the defects resulted from the content of the multiple complaints made by Mr. … and the related work orders; from the examination of these elements, with an adequately motivated evaluation of merit, the appellate court has drawn the conclusion that the …, already a few days after the delivery of the vehicle, had had the “clear and repeated perception of the vice”, making it however, he complains to the concessionaire, unrelated to the security obligation.

The Court, in the activity of interpretation of the defense deeds submitted to the trial court, also noted that from the same literal tenor of the appeal for ATP appears that the … had acquired a clear knowledge of the defects, so the Atp request was only aimed at ascertaining the cause of the defect reported.

However, against this assessment, today’s applicant merely generates to have acquired full awareness of the defects and malfunctions only at the outcome of the ATP, but does not deduce any specific element, also having regard to the content of the appeal or of the report of the ATP, confirming its allegation, according to which it reached the full knowledge of the vices only with the filing of the ATP report.

The sixth motive denounces the violation of the art. 360 n.3) of the Code of Civil Procedure, in relation to the ruling of the Court of Appeal that has ruled the inadmissibility of the preliminary inquiries, as they are generically proposed with a mere reference to those already formulated in deeds.

The reason is inadmissible due to lack of self-sufficiency.

It should be noted that according to the consolidated direction of this Court the judgment on the superfluity or generality of the testimonial evidence is unquestionable in cassation, involuting a factual assessment that can be censored only if based on erroneous legal principles, or on logical inconsistencies (Cass. 18222/2004).

In the present case, the appellant limited himself to censuring the decision of inadmissibility, without providing any element that would contrast that assessment by the court of merit, and in particular by failing to indicate the modality of deduction of the testimonial evidence.

However, the party who, during the appeal to the Court of Cassation, criticizes the failure to admit the testimonial evidence required in the judgment on the merits of the judgment under appeal, has the burden, under penalty of inadmissibility, if not to write down in the appeal the relevant chapters, at least to give an exhaustive indication of the factual circumstances that were the subject of the disregarded preliminary inquiry, since the appeal must be self-sufficient.

Therefore, it must contain in itself all the elements that give the judge of legitimacy both the possibility to provide direct control of the decisiveness of the points in question and therefore to appreciate the importance of the failure to carry out the preliminary investigation for the decision of the dispute. to verify the correctness and sufficiency of the motivation of the contested ruling, – in the case of a generic nature of the wording of the chapters – that the SC must be able to perform on the basis of the deductions contained in the deed, to which gaps is not allowed to be compensated by additional investigations (Cass.13556 / 2006; 17915/2010).

The appeal must therefore be dismissed and the appellant must be ordered to reimburse the litigation costs, which are liquidated as a device.

The Court rejects the appeal.

Source Supreme Court of Cassation

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