L’esistenza di oneri di urbanizzazione non espressamente dichiarati dal venditore e la garanzia ex art. 1489 cod. civ.

Translated title of the contribution: [Autom. eng. transl.] The existence of urbanization charges not expressly declared by the seller and the guarantee pursuant to art. 1489 cod. civ.

Research output: Contribution to journalArticle

Abstract

[Autom. eng. transl.] The contribution concerns the nature to be attributed to amounts requested by the Municipality upon completion of the building regularization procedure. In particular, the dispute arises about who, between seller and buyer, is responsible for bearing the weight and, consequently, about the question whether the buyer, after having paid, can claim against the seller to obtain the return of the amount paid in compliance with the municipal provision. The buyer's claim bases its reasons on the discipline pursuant to art. 1489 cod. civ .: in this perspective, the request for payment, by the public administration, of the contributions for the urbanization works would represent a "not apparent burden that limits the free enjoyment of the asset", since the seller has kept silent about the eventuality, nor would it have been easily known by the buyer; the seller, therefore, would be required, by virtue of the guarantee contained in the aforementioned provision, to return the amount paid by the buyer as concession fees. On the contrary, in the mind of the transferring party, the discipline pursuant to art. 1489 cod. civ. it would not be applicable, since, first of all, the possibility of having to pay a further sum by way of concession contributions would represent a circumstance easily known by the buyer once he has been made aware of the start of an amnesty procedure and of the already occurred payment by the seller of the amount owed as an oblation; and, secondly, since this obligation does not constitute any limitation in the enjoyment of the purchased property. With the ruling rendered by the Court of Appeal, the Court of Cassation commented in favor of the seller, declaring the non-applicability of the art. 1489 cod. civ. not only by virtue of the appearance of a similar burden, to be its implicit existence in the declaration of commencement of the procedure for amnesty and for the payment of the relative payment, but also stating that, in any case, the said charge would not limit the enjoyment of the asset . Of both statements, so superficially expressed, it is legitimate to doubt: first, indeed, in the analysis of the concept of "appearance" the SC could have gone so far as to investigate the actual meeting point of the diligence obligations of each contractual party; and, secondly, it has not made any argumentative effort in support of the asserted "not limitation of the free enjoyment of the good", above all for the peculiar aspects that the theme comes to assume in the case of the contributions owed by the owner of a property by way of infrastructure costs.
Translated title of the contribution[Autom. eng. transl.] The existence of urbanization charges not expressly declared by the seller and the guarantee pursuant to art. 1489 cod. civ.
Original languageItalian
Pages (from-to)894-901
Number of pages8
JournalLA NUOVA GIURISPRUDENZA CIVILE COMMENTATA
Publication statusPublished - 2012

Keywords

  • condono
  • vizi della cosa venduta

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