Arricchimento ingiustificato indiretto e gratuità

[Autom. eng. transl.] The article is inspired by a court case (decided by Cass., 3 September 2019, n. 21992) in which, in the context of a real estate leasing relationship in which the user had received mandate from the granting companies without representation to contract the construction of a building on the leased land and the grantors paid the contractor the price of the works carried out in proportion to the co-ownership share of the land, the contractor's consideration for additional works that had become necessary but not previously agreed by the user with the grantors it was not paid either by the latter or by the user, whose subsequent placing in an arrangement with creditors - with consequent termination of the leasing - made it impossible to collect the credit for the whole. The contractor thus chose to assert the unjustified enrichment action against the grantors, to obtain an indemnity equal to the cost of the additional works built, seeing it rejected in the two grades of merit for contrast with the requirement of subsidiarity of the action ex art. 2042 of the Italian Civil Code (having he abstractly disposed of the contractual action of fulfillment towards the client to the extent of the credit indicated in the proposed arrangement of the same) and in legitimacy because the indirect unjustified enrichment action - admitted by the jurisprudence in the event of insolvency of the directly enriched subject - would postulate the gratuitousness of the contractual relationship between the indirectly enriched subject and the insolvent subject obliged towards the impoverished, not found in the financial leasing. Within this framework, the article delves into the notion of indirect unjustified enrichment, focusing on the hypothesis in which the client's inability to carry out works ex contractu on a good that he enjoys without being its owner poses the problem of the admissibility of the action ex art . 2041 towards the owner of the asset that benefits from it, who is usually made to depend on gratuity, in a sense to be specified. In particular, by valuing the equalization request at the basis of the institute and the motivation for a ruling by the United Sections in this regard (n. 24772/2008), the reflection reaches the theoretical conclusion - which would have led to a different solution of the case - according to that the action can be proposed by virtue not of the gratuitousness of the contractual title of the subject indirectly enriched, but of the enrichment achieved by the latter even within an abstractly burdensome relationship, since it is a question of verifying from time to time whether the patrimonial benefit obtained is not balanced by an inverse benefit paid by the enriched party and of which the contractual counterparty benefits directly or indirectly.