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BOLOGNA SEPARATION? MAINTENANCE? GRANT?
BOLOGNA SEPARATION? MAINTENANCE?GRANT? Maintenance allowance and divorce check separating bologna map 
BOLOGNA SEPARATION? MAINTENANCE? GRANT?Maintenance allowance and divorce allowance
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Article 156 of the Civil Code (Effects of separation on property relations between the spouses), paragraph 1, establishes that “the judge, pronouncing the separation, establishes for the benefit of the spouse the separation is not the right to receive from the what other spouse is necessary for his maintenance, if he does not have adequate incomes of his own ”.
Yes the separation has strong consequences on the patrimonial regime of the family as it determines the cessation of the conjugal bond .
Maintenance allowance and divorce allowance: comparison
The maintenance allowance performs its function in the separation of the spouses: the judge, in pronouncing the separation, imposes on the spousewho has a better economic condition to contribute to the maintenance of the other, if deprived of adequateincomes of his own BOLOGNA EXECUTION?MAINTENANCE? GRANT? Maintenance allowance and divorce allowance
Therefore, the maintenance grant following separation is governed by art. 156 of the Civil Code, which states that “the judge pronouncing the separation establishes the right of the spouse to receive from the other spouse what is necessary for his maintenance, if he does not have his own income”.
the divorce allowance , whose foundation is recognized, in fact, in the definitive rupture of the marital relationship and, therefore, in the loss of all the effects proper to the marriage bond . Also the divorce allowance has a welfare / solidarity purpose, ie it serves to prevent the deterioration of the economic conditions of the economically weaker spouse .
Marriage – Separation – Maintenance allowance – Effective date – From the date of the application – Eligibility – Modulation of the amount of the check over time – Possibility. (Cc, articles 155 and 156)
On the subject of personal separation of spouses, the fact that the entitlement of the grants referred to in articles 155 and 156 of the Italian Civil Code starts from the request does not exclude the power of the merit judge to graduate and differentiate over time the amount of the grant to support maintenance of the spouse and children, modulating it according to the set of concretely ascertained data. It follows, therefore, that the natural retroactivity of the rulings taken in this regard in the judgment of separation does not also mean necessary uniformity of the amounts fixed in relation to the various temporal phases.
Cass. Section I, sentence 17 December 2004 n. 23570 ()
Divorce – Next to separation – Divorce allowance – Behavior of one of the spouses – Before separation – Irrelevance. (Law 1 December 1970 No. 898, Articles 3 and 5)
The behavior of the spouses, prior to the separation, remains exceeded and absorbed by the assessment made in this regard by the separation judge . It follows, therefore, that if this was pronounced without charge (and with the recognition of the right to receive a maintenance allowance in favor of one of the spouses) in ascertaining the reasons for the decision, for the purpose of determining the divorce check only the behavior of the beneficiary part of the post-separation assignment can be taken into account, when it is found to preclude the reconstitution of the spiritual and material communion of the spouses.
Cass. Section I, sentence 1 February 2005 n. 1989 (in Judas at the Right, Edition No. 12 of March 26, 2005, page 52)
rule of the art. 156 cod. civ., the right to maintenance following a personal separation arises, in favor of the spouse to whom the latter is not chargeable, where he does not benefit from income that allows him to maintain a standard of living similar to that which he had during the marriage. In assessing this assumption, however, the judge will have to take into account any type of disposable income on the part of the applicant, including those deriving from donations from family members who were in progress during the marriage and which continue in separation with character. of regularity and continuity such as to have a stable and certain influence on the standard of living of the person concerned.
Civil Cassation Section VI, 10 June 2014, no. 13026
Article. 5 of the law n. 898/70 provides that the Court, with the sentence that pronounces the dissolution or the cessation of the civil effects of the marriage, recognizes the divorce allowance to the spouse who requests it when the latter does not have adequate means or in any case cannot obtain them for reasons objective, taking into account the income conditions of both spouses, the reasons for the decision, the personal and economic contribution made by each to the family and property management, and evaluating these elements in relation to the duration of the marriage.
In the absence of this requirement, the co-owned house cannot be assigned by the Judge as a replacement or as a member of the maintenance allowance (of separation or divorce) and remains subject to the rules on communion, in order to use and any division ( see ax multis Cass. 9079/2011; Cassation 6979/2007; Cassation 16398/2007; Cassation 3934/2008; Cassation 387/2012; Cassation 18440/2013; Cassation 12346/2014).
- art. 708 Code of Civil Procedure, which the President “also ex officio, after hearing the spouses and their respective defenders, gives temporary orders by order and
urgent that it deems appropriate in the interests of the children and the spouses “
- – in the art. 155- sexies cc that: “before the issuance, even provisionally, of the measures referred to in Article 155 , the judge can take, at the request of the party or ex officio, means of proof. The judge also provides for the hearing of a minor child who has reached the age of twelve and also of an inferior age where capable of discernment. If he deems it appropriate, the judge, having heard the parties and obtained their consent, may postpone the adoption of the measures referred to in Article 155 to allow the spouses, using experts, to attempt mediation to reach an agreement, with particular reference to
protection of the moral and material interests of children
| Art. 156 cc | Article 8 L. divorce |
| Effects of separation on property relationships between spouses. 1. The judge, pronouncing the separation, establishes for the benefit of the spouse to whom the separation is not attributable the right to receive from the other spouse what is necessary for its maintenance, if he does not have adequate own income. 2. The extent of this administration is determined in relation to the circumstances and income of the obliged party. 3. The obligation to supply the foods referred to in articles 433 and following remains unaffected. 4. The judge who pronounces the separation may require the spouse to provide a suitable real or personal guarantee if there is a danger that he may escape the fulfillment of the obligations provided for by the previous paragraphs and by the article 155. 5. The sentence constitutes a title for the registration of the judicial mortgage pursuant to article 2818. 6. In the event of default, the judge may order the seizure of part of the assets of the obligated spouse and order the third parties, who are also required to pay periodically, upon request of the entitled party. sums of money to the obligor, than a part of it | 1. The court that pronounces the dissolution or the cessation of the civil effects of the marriage can impose to the obligation to provide suitable real or personal guarantee if there exists the danger that he can escape the fulfillment of the obligations of which to articles 5 and 6. 2 The sentence constitutes a title for the registration of the judicial mortgage pursuant to art.2818 of the civil code. 3. The spouse who is responsible for the periodic payment of the check, after the formal notice by registered letter with acknowledgment of receipt of the obliged and defaulting spouse for a period of at least thirty days, can notify the provision in which the measure of the check to third parties required to periodically pay sums of money to the obliged spouse with an invitation to pay the sums due directly, giving notice to the defaulting spouse. 4. If the third party who has been notified of the provision fails to comply, the creditor spouse has direct executive action against him for payment of the sums due to him as maintenance allowance pursuant to articles 5 and 6. 5. If the credit of the spouse is obliged with respect to the aforementioned third parties, the proceeding judge and the creditors who took part in the execution shall provide the judge of the execution with assignment and allocation of the sums among the spouse to whom the periodic payment of the check is due. . 6. The State and the other bodies indicated in the art. 1 of the consolidated text of the laws concerning the seizure, attachment and assignment of salaries, wages and pensions of public administration employees, approved by decree of the President of the Republic January 5, 1950, n. 180, as well as other employers’ organizations to which the provision in which the measure of the allowance is established and the invitation to pay directly to the spouse who is due the periodic payment, cannot pay to |
| be paid directly to the beneficiaries.7. If justified reasons arise, the judge, at the request of a party, may order the revocation or modification of the provisions referred to in the preceding paragraphs. | the latter over half of the sums due to the obliged spouse, including checks and ancillary emoluments. 7. To ensure that the creditor’s reasons for fulfilling the obligations pursuant to Articles 5 and 6 are met or maintained, the judge may order the seizure of the property of the spouse who is obliged to administer the request upon request of the claimant. check. The sums due to the spouse who is obliged to pay the allowance referred to in the previous paragraph are subject to seizure and attachment up to half of the amount for the satisfaction of the periodic check as per articles 5 and 6. |
| Sum seizable: no limit | Sum seizable: up to half |
| Order – order for payment | Direct enforceable action against the third party, following extrajudicial formal notice. |
Article 155. The judge who pronounces the separation declares to which of the spouses the children are entrusted and adopts any other provision relating to the offspring, with exclusive reference to its moral and material interest.
In particular, the judge establishes the extent and the way in which the other spouse must contribute to the maintenance, education and upbringing of children, as well as the modalities of exercising his rights in relations with them.
The spouse to whom the children are entrusted, unless otherwise instructed by the judge, has exclusive exercise of power over them; he must comply with the conditions determined by the judge. Unless otherwise stated, decisions of greater interest to children are taken by both spouses. The spouse to whom the children are not entrusted has the right and duty to supervise their education and education and can appeal to the judge when he considers that decisions have been taken which are prejudicial to their interest.
The home in the family house is preferably, and where possible, the spouse to whom the children are entrusted.
The judge also gives instructions about the administration of the assets of the children and, in the hypothesis that the exercise of the power is entrusted to both parents, the concurrence of the same to the enjoyment of the legal usufruct.
In any case, the judge may for serious reasons order that the offspring be placed with a third person or, in impossibility, in an educational institution (Cod. Proc. Civ. 710).
In issuing the provisions relating to the custody of children and the contribution to their maintenance, the judge must take into account the agreement between the parties: the measures may be different with respect to the parties’ requests or their agreement, and issued after the assumption of evidence by the parties or officially ordered by the judge.
The spouses have the right to request at any time the revision of the provisions concerning the custody of the children, the attribution of the exercise of authority over them and the provisions relating to the measure and the modalities of the contribution.
Personal separation of spouses – Determination of maintenance allowance – Disputes – Appeal by the judge to the tax police – Eligibility. (Law 898/1970, article 5)
Article 5, paragraph 9, of Law 898/1970, in the new text of Article 10 of Law 74/1987, which, in the matter of recognition and determination of the divorce allowance, establishes that “in the event of disputes, the court arranges investigations on the incomes and assets of the spouses and on their actual standard of living, making use, if appropriate, also of the tax police ”, must be considered applicable by analogy, given the identity of the ratio, also in the matter of separation of spouses , with regard to maintenance allowance. The exercise of this power, which constitutes an exception to the general rules on the burden of proof, falls within the discretion of the trial court, and cannot also be considered as a duty imposed on the basis of the simple dispute of the parties regarding their respective economic conditions. There is, however, a limit to this discretion, to be found in the circumstance that the judge, being able to avail himself of this power, cannot reject the requests of the parties relating to the recognition and determination of the check in terms of the failure to demonstrate the assumptions on which they are founded, in this case under the same the obligation to make office assessments.
Cass. Section I, sentence 17 May 2005 n. 10344 (in Judas at the Right, Edition No. 25 of June 25, page 42)
SEPARATION OF THE ATTORNEY OF DIVORZISTA Anzola dell’Emilia, Argelato, Baricella, Bazzano, Bentivoglio, Bologna, Borgo Tossignano, Budrio, Calderara di Reno, Camugnano, Casalecchio di Reno, Casalfiumanese, Castel d’Aiano, Castel del Rio, Castel di Casio, Castel Guelfo of Bologna, Castel Maggiore, Castel San Pietro Terme, Castello d’Argile, Castle of Serravalle, Castenaso, Castiglione dei Pepoli, Crespellano, Crevalcore, Dozza, Fontanelice, Gaggio Montano, Galliera, Granaglione, Granarolo dell’Emilia, Grizzana Morandi, Imola , Lizzano in Belvedere, Loiano, Malalbergo, Marzabotto, Medicina, Minerbio, Molinella, Monghidoro, Monte San Pietro, Monterenzio, Monteveglio, Monzuno, Mordano, Ozzanodell’Emilia, Pianoro, Porretta Terme, Sala Bolognese, San Benedetto Val di Sambro, San Giorgio of Piano, San Giovanni in Persiceto, San Lazzaro di Savena, San Pietro in Casale, Sant’Agata Bolognese, Sasso Marconi, Savigno, Vergato, Zola Predosa
Anzola dell’Emilia family law, Argelato, Baricella, Bazzano, Bentivoglio, Bologna, Borgo Tossignano, Budrio, Calderara di Reno, Camugnano, Casalecchio di Reno, Casalfiumanese, Castel d’Aiano, Castel del Rio, Castel di Casio, Castel Guelfo di Bologna, Castel Maggiore, Castel San Pietro Terme, Castello d’Argile, Castle of Serravalle, Castenaso, Castiglione dei Pepoli, Crespellano, Crevalcore, Dozza, Fontanelice, Gaggio Montano, Galliera, Granaglione, Granarolo dell’Emilia, Grizzana Morandi, Imola, Lizzano in Belvedere, Loiano, Malalbergo, Marzabotto, Medicina, Minerbio, Molinella, Monghidoro, Monte San Pietro, Monterenzio, Monteveglio, Monzuno, Mordano, Ozzanodell’Emilia, Pianoro, Porretta Terme, Sala Bolognese, San Benedetto Val di Sambro, San Giorgio di Piano, San Giovanni in Persiceto, San Lazzaro di Savena, San Pietro in Casale, Sant’Agata Bolognese, Sasso Marconi, Savigno, Vergato, Zola Predosa
Anzola lawyer of the Emilia, Argelato, Baricella, Bazzano, Bentivoglio, Bologna, Borgo Tossignano, Budrio, Calderara di Reno, Camugnano, Casalecchio di Reno, Casalfiumanese, Castel d’Aiano, Castel del Rio, Castel di Casio, Castel Guelfo di Bologna, Castel Maggiore, Castel San Pietro Terme, Castello d’Argile, Castle of Serravalle, Castenaso, Castiglione dei Pepoli, Crespellano, Crevalcore, Dozza, Fontanelice, Gaggio Montano, Galliera, Granaglione, Granarolo dell’Emilia, Grizzana Morandi, Imola, Lizzano in Belvedere, Loiano, Malalbergo, Marzabotto, Medicina, Minerbio, Molinella, Monghidoro, Monte San Pietro, Monterenzio, Monteveglio, Monzuno, Mordano, Ozzanodell’Emilia, Pianoro, Porretta Terme, Sala Bolognese, San Benedetto Val di Sambro, San Giorgio di Piano, San Giovanni in Persiceto, San Lazzaro di Savena, San Pietro in Casale, Sant’Agata Bolognese, Sasso Marconi, Savigno, Vergato, Zola Predosa
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SEPARATION ADULTER, TRIAL, TRANSLATION, separation betrayal of his wife, Bologna, separation with a charge, Bologna, betrayal of the spouse, betrayal of the spouse, and separation with betrayal of the spouse and separation with debit separation for treason of the spouse
In the case of treason , it is not enough to assign the charge to the faithless spouse, who will also have to repay the damage to the other because “the desire for freedom and happiness” sought outside “involves the disintegration of the family” liable to damage.
The cassation says that the charge in the case of horns is not enough but a quid pluris must be recognized, that is a compensation for the betrayal.
The Cassation established it (sentence 8862/12) accepting the appeal of a betrayed wife.
WHAT IS THE DAMAGE FROM HORSE AND WHY IS IT SANCTED?
Attorney Sergio Armaroli, deals with separations and divorces throughout Italy.
Horn damage causes a break in the couple if the spouse is betrayed.
In this way, the First Civil Section – sentence 8862 – accepted the appeal of a betrayed wife from Macerata, who asked for the ‘betrayal damages’ .
It had happened that the Court of Appeal of Ancona, on April 16, 2010, charged the blame for the nuptial failure on the husband, arranging the joint custody of the minor daughters with placement by the mother, excluding compensation for damage from treason. The reasoning followed by the judges of merit was based on the assumption that the conduct of man “would not be anti-juridical” and that the claim for damages “would run counter to the right of the spouse to pursue their own personal choices, especially as a result of the law that has eliminated the illicit character of adultery ”. An argument that the Cassation did not share, pointing out that saying that the betrayal is already sanctioned with the charge of the separation “does not take into account the jurisprudential evolution of these years”
The Court of Appeal of Ancona blames the husband for the failure of the marriage, ordering the joint custody of the minor daughters with placement by the mother, excluding the compensation for damage from treason.
WHAT IS THE DAMAGE FROM HORSE AND WHY IS IT SANCTED?
Attorney Sergio Armaroli, deals with separations and divorces throughout Italy.
Horn damage causes a break in the couple if the spouse is betrayed.
In the face of adultery, the applicant for the charge complied with the burden of proof on him, since he was not even burdened with demonstrating the causal efficiency from the same turn; consequently, it is up to the other spouse to try, to avoid the charge, the extinct fact, namely that adultery occurred in an already disintegrated family context, to the point that cohabitation was mere simulacrum; it also derives that, once adultery has been ascertained, the sentence which founds the ruling of debit on this premise is sufficiently justified (so again the aforementioned Cassation of February 14, 2012, No. 2059 ).
On the other hand, the anteriority of the matrimonial crisis to the ascertained infidelity has not been positively ascertained by the court of merit, which, after careful examination of all the elements of the case that emerged during the trial, has finally ruled out that in the specific case the facts from the responsible attorney (quarrels and the habit of sleeping in separate rooms) were conclusive and unequivocal indications of the previous situation of intolerability of cohabitation and of the nature of mere simulacrum and appearance of the same, given that however they did not prevent the continuation even of the relationships between them.
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SUPREME COURT OF CASSATION
SECTION I CIVIL
Judgment May 23, 2014, n. 11516
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE SUPREME COURT OF CASSATION
SECTION CIVIL FIRST
Composed by the Ill.mi Sigg.ri Magistrati:
Dott. FORTE Fabrizio – President –
Dott. DOGLIOTTI Massimo – Director –
Dr. DIDONE Antonio – Director –
Dr. ACIERNO Maria – Councilor –
Dott. NAZZICONE Loredana – rel. Councilor –
pronounced the following:
judgment
on appeal 27217/2012 proposed by:
MA (cf (OMISSIS)), electively domiciled in Rome, LUNGOTEVERE FLAMINIO 28, at the lawyer IOANNUCCI MATTIA, represented and defended by the lawyer MARTINI Marisa, right attorney at the bottom of the appeal;
– applicant –
versus
VA, electively domiciled in ROME, Via CRESCENZIO 20, at the lawyer LABELLA VALERIA, represented and defended by the lawyer SCACCHETTI Maria Grazia, right attorney at the bottom of the counter;
– counter-current –
against sentence no. 1166/2012 of the BOLOGNA COURT OF APPEALS, filed on 23/08/2012;
having heard the report of the case made in the public hearing of 08/04/2014 by the Director Dott. LOREDANA NAZZICONE;
having heard, for the applicant, the lawyer SANDRA AROMOLO, with delegation, who asked for the appeal to be accepted;
having heard, for the counter-appellant, the lawyer MARIA GRAZIA SCACCHETTI who requested the dismissal of the appeal;
having heard the PM, in the person of the Deputy Attorney General Dott. CERONI Francesca, who concluded for the inadmissibility, or alternatively rejection of the appeal.
Process execution
With the sentence of August 23, 2012, the Bologna Court of Appeal, in partial reform of the sentence of the Court of Modena, declared the debit of the separation to MA, excluding the right to the maintenance allowance and declaring inadmissible the application for maintenance proposed by the same, otherwise confirming the first instance sentence.
The territorial court has held, for what is still relevant, that the debit of the separation derives from the documentary proof of the violation of the duty of fidelity, acquired through the investigative report and the telephone records deposited in deeds, which revealed the relationship of the wife in epoch prior to your request for separation; nor had this proved the anteriority of the marital crisis, given that the generic quarrels between the spouses, deduced by the same, represent physiological events in the life of the couple unsuitable by themselves to configure the intolerability of cohabitation, while the circumstance of the use of rooms separated did not appear to be justified by the deduced reason of the existence of a cohabitation only formal.
He added that, at the hearing to specify the conclusions in the first instance of November 10, 2011, M. had not repeated the request to charge the separation to the husband, nor the preliminary requests, to be considered therefore implicitly renounced, also taking into account the agreement renunciation of the filing of the concluding extras.
Against the sentence, it appeals to the cassation MA, entrusted to seven reasons. Resists VA by counter-appeal, in which it deduces the nullity of the power of attorney for the judgment, for its non-consecutive numbering with respect to the previous and next page.The appellant party has also filed the statement pursuant to art. 378 cpc
Reasons for the decision
1. – With the first plea, the appellant alleges infringement and incorrect application of the art. 189, 345 and 356 cpc, and the defect of motivation, for not having the court of appeal admitted the means instructing on the debit of the crisis to the husband, in how much renounced for the missed recall of them in the formulated conclusions.
With the second reason, he infers the violation and incorrect application of the art. 143 cc, paragraph 2, art.151 of the Civil Code, paragraph 2 and art. 2697 of the Italian Civil Code, as well as the lack of motivation, because the contested sentence charged the separation to the wife, violating the principle according to which the debit sentence cannot be based only on the violation of the conjugal duties, having instead to ascertain if such violation has assumed causal effectiveness in the determination of the marital crisis, and censoring the decision itself for having deemed this connection to be proven.
With the third reason, he complains about the violation and incorrect application of art. 115 Code of Civil Procedure and Art. 2697 cc, and the lack of motivation, to have the court of appeal considered proven the violation of the duty of fidelity on the basis of the investigative report and telephone records, documents nevertheless promptly disputed and unsuitable to prove the circumstance.
With the fourth reason, he infers the violation of the art.146 cc, paragraph 25, art. 151 cc, paragraph 2, art. 2697 cc and art. 115 Code of Civil Procedure, in addition to the lack of motivation, for having deemed the causal link between the betrayal and the intolerability of the cohabitation to be proved, considering the previous situation of serenity of the marital relationship and the adequately long duration of the infidelity, based solely on the affirmations of the V., and not considering other elements because of that intolerability, such as the attendance of nightclubs by the husband, the sexual disinterest of his wife, his depression.
With the fifth reason, he still deduces the violation and incorrect application of the art. 146 cc, paragraph 2, art.151 cc, paragraph 2, art. 2697 cc and art. 115 Code of Civil Procedure, in addition to the defect of motivation, for not having the sentence under appeal considered the marital crisis anterior to the alleged betrayal.
With the sixth plea, he complains about the violation of the art. 115 and 244 Code of Civil Procedure, art. 2704 cc and the lack of motivation, since the investigative report was drafted by a third party on behalf of the husband, therefore without the guarantees of the adversarial procedure, where the investigator had narrated a series of facts reaching completely personal conclusions, and therefore it could not constitute a full proof, not even with regard to the dates of the facts photographed.
With the seventh plea, he denounces the lack of motivation, in order to have the contested sentence stated that the first judge, without being censored on this point by the appellant, had nevertheless recognized the evidence of infidelity, although he came to exclude the charge.
2. – The objection of a power of attorney to the appellant’s defense counsel is groundless, since, as is clear from the original of the deed, it was tapped at the appeal and contains a position prior to the notification, which makes the material error on pages bearing the number “38” irrelevant, although placed between the number “40” and the number “41”.
In fact, the requirement of the joining material between the separate sheet, with which the power of attorney has been issued, and the act to which it accesses, does not materialize in the necessity of a mechanical seam, but has regard to a context of elements that allow, in the same way as the prudent appreciation of facts and circumstances, of achieving a reasonable certainty as to the origin on the part of the power of representation and the traceability of the power of attorney itself to the judgment in question (cf. Cass. 12 January 2012, n. 336 and December 19, 2008, No. 29785, among many others.
In the present case, the prudent appreciation of facts and circumstances allows a reasonable certainty to be reached regarding the traceability of the power of attorney to the judgment in question: awaiting the material conjunction of the power of attorney to the appeal, before the notification report.
3. – The first reason is unfounded.
The appellate court held that the request to debit the separation and the preliminary motions, therefore implicitly renounced, arguing also from the simultaneous agreement renouncing the filing of the extras conclusions, demonstration of the intent of the parties to hold firm to the conclusions already formulated and, in particular, for M., the request for shared custody of the child, the placement of the same by itself and the maintenance allowance of 1,200 euros, 00.
As the non-recall of those questions and petitions to the hearing is uncontested, the court of appeal has correctly applied the consolidated principle, and from which there is no reason to depart, according to which “the failure to repeat the question (or exception) in the clarification of the conclusions implies the abandonment of the same, assuming relief only the expressed will of the party, in compliance with the principle device that informs the civil trial, with consequent irrelevance of the unexpressed will ”(with the exception of the case of technical-legal prejudice between the questions, where only the presumption of persistence of the unrepeated preliminary request exists, unless the interested party expressly renounces it and if it is not necessary, by law, to decide the preliminary question with efficacy of res judicata: lastly, Cassation July 5 2013, No. 16840 ; Cassation dated January 29, 2013, No. 2093, with regard to the relevance of the non-revival of thepreliminary requests, see Cass. June 27, 2012, n.10748).
4. The remaining grounds of the appeal, which may be dealt with jointly because they are intimately connected, aim to censure the decision to charge the separation to the wife (hence the consequent exclusion of the right to maintenance allowance pursuant to Article 156 of the Civil Code).
They cannot be accepted.
The appellate court found: a) the extramarital affair of M. proved, and b) that this relationship was the cause of the definitive breakdown of the personal relationship between the spouses.
4.1. – From the first point of view, the appellant complains that the territorial court based its conviction on an investigative report drawn up by a person appointed by her husband, on the photographs contained in it and on some telephone records from the same products.
As for the use of the investigative report drawn up by a technician appointed by one of the parties to the trial, the lawfulness of this conduct was repeatedly confirmed by this Court: thus, in the context of labor relations, where the employer is allowed to appoint a detective agency in order to verify illegal conduct by employees (among others, Court of Cassation November 22, 2012, No. 20613; Cassation June 8, 2011, No. 12489 ; Cassation February 14, 2011, No. 3590; Cass. 22 December 2009, No. 26991, the latter discussing the faculty of the employer to resort to the means necessary to ensure the same survival of the company against fraudulent activity, Court of Cassation of 9 July 2008, No. 18821, Court of Cassation of 7 June 2003 No. 9167 ).
In the context of the family matter, likewise the recourse to the help of a private investigator is admitted by this Court, where it has only declared the non-repeatability of the expenses (Court of Cassation April 12, 2006, No. 8512; Cassation February 24, 1975, n . 683).
In the present case, the appellate court held that the breach of the duty of fidelity, proved by these documents, was then prior (summer 2003) to the request for separation (November 2003), based on the dates resulting from phone records and photographs :
therefore, it has attributed importance to completely objective data, not to the mere deductions of the private investigator in charge.
This factual assessment, being adequately motivated, does not therefore lend itself to any censorship on the part of this Court.
4.2. – From the second point of view, the appellant also complains of the conviction, reached by the contested judgment, that it was precisely this adultery which was the efficient cause of the cessation of the co-habitation tolerance.
The merit court considered the causal suitability of M.’s extramarital affair to have an impact on the marital relationship, while it did not recognize the proof of the anteriority of the crisis: it highlighted, on the one hand, the duration and intensity of the adulterine relationship and, on the other hand, the non-conclusion of the data offered by the person responsible for the previous disputes of the spouses and the use of separate rooms.
These arguments do not lend themselves to censorship, from the point of view of the lack of reasoning that can only be inferred, in this regard, here, in light of the principle according to which, in the matter of the judicial separation of the spouses, it is assumed that the non-observance of the duty of loyalty, due to its gravity, determines the intolerability of the continuation of cohabitation, thus justifying, in itself, the charge to the responsible spouse, unless he proves that adultery was not the cause of the family crisis, this being already irremediably in place, so that marital cohabitation was now merely formal (lastly, Cassation February 14, 2012, No. 2059 ; Cassation December 7, 2007, No. 25618 ).
This means that, in the face of adultery, the applicant for the charge has fulfilled the burden of proof on him, since he is not even burdened by the demonstration of causal efficiency from the same turning point; consequently, it is up to the other spouse to try, to avoid the charge, the extinct fact, namely that adultery occurred in an already disintegrated family context, to the point that cohabitation was mere simulacrum; it also derives that, once adultery has been ascertained, the sentence which founds the ruling of debit on this premise is sufficiently justified (so again the aforementioned Cassation of February 14, 2012, No. 2059 ).
On the other hand, the anteriority of the matrimonial crisis to the ascertained infidelity has not been positively ascertained by the court of merit, which, after careful examination of all the elements of the case that emerged during the trial, has finally ruled out that in the specific case the facts from the responsible attorney (quarrels and the habit of sleeping in separate rooms) were conclusive and unequivocal indications of the previous situation of intolerability of cohabitation and of the nature of mere simulacrum and appearance of the same, given that however they did not prevent the continuation even of the relationships between them.
In conclusion, the court did not consider proven, with arguments immune to motivational defects, elements suitable for backdating the situation of intolerable crisis prior to the wife’s infidelity.
5. – The costs follow the unsuccessful and are liquidated as in the device.
PQM
The Court rejects the appeal and condemns the appellant to pay legal expenses, paid in the amount of Euro 4,200.00, of which Euro 200.00 for disbursements, in addition to flat-rate expenses and accessories, as per law.
Decided in Rome, in the Council Chamber, on 8 April 2014.
Filed in the Registry on May 23, 2014
debit separation |
after separation |
separation at home |
a separation |
the break up |
separation and divorce |
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THREE RECOMMENDATIONS FOR REMEDY FOR INVESTED PEDESTRIAN
PEDESTRIAN
INVESTED, RULES TO FOLLOW, DAMAGE COMPENSATION
I CAN HELP YOU, CALL WITH TRUST !!!
I CAN HELP YOU, CALL WITH TRUST !!!
pedestrian give podone compensation THREE TIPS FOR REMEDY FOR INVESTED PEDESTRIAN, REQUIRED DAMAGED THE FIRST AND MOST IMPORTANT IT IS TO MAKE MEDICAL OR ASK FOR A HOSPITAL TO TREAT INJURIES
2) HOW TO DO AND WHO THE DAMAGE REQUEST?
IF IT IS A VEHICLE CAR MOTORCYCLE TRUCK IT IS NECESSARY TO REFER THE REQUEST TO THE OWNER AND TO THE DRIVER OF THE SUBMISSION AS WELL AS TO THEIR INSURANCE
3) IS IT RECOMMENDED BY A LAWYER?
I BELIEVE YOU ARE ESPECIALLY IF YOU ARE SERIOUS DAMAGES TO THE PERSON BECAUSE YOU’LL KNOW HOW TO ASSIST YOU TO GET THE COMPENSATION
When, in consideration of the context of time and place, as described above, the road user is required to observe those unwritten precautionary rules with greater care. The drivers, in fact, remain bound to the obligation of neminem laedere, which characterizes the cases of assertion of responsibility for culpable crimes against life and individual safety, with the consequence that independently from the possible legislative discipline of the conduct put in place, the violation of this principle, even if not sanctioned by the law, still constitutes guilt for imprudence and determines criminal responsibility in case of death or injury. It must be noted, in fact, that the assessment of the predictability and, therefore, of the avoidance of the event must be brought forward to the moment in which the SA had perceived the presence of the bus coming from the opposite direction and that had recently made a stop, being, on the basis of common experience, predictable that a person, coming down from a bus, could imprudently and recklessly cross the road; it is at this time that the applicant had to start adopting a more vigilant behavior that would have avoided the event; the consideration excludes the possibility of a fortuitous event, consisting in that unforeseen and unpredictable event that suddenly becomes part of the subject’s action and cannot in any way, not even as a fault, be traced back to the psychic activity of the agent. In a similar case this Court affirmed that (Section 4, Judgment n. 44651 of 12/10/2005 Ud. Rv. 232618) in the case of a pedestrian’s investment, why the exclusive guilt of him for injuries can be affirmed suffered or due to his death, it is necessary that the driver of the investor vehicle has found himself, for reasons unrelated to any of his diligence obligations, in the objective impossibility of spotting the pedestrian and to observe his movements promptly, implemented quickly and unexpectedly. moreover, that no infringement of the rules on road traffic and those of common prudence can be found in the behavior of the driver
SUPREME COURT OF CASSATION
SECTION IV PENALTY
Judgment October 30, 2013 – March 31, 2014, no. 14776 (Sirena President – Ciampi Speaker)
Considered in fact
1. Permit on January 23, 2013, the Court of Appeal of Rome, in a reform of the sentence of the Court of Rome on June 21, 2010 issued against the SS and appealed by the Public Prosecutor to the Court, declared the accused responsible for sentenced to him and, given the general extenuating circumstances deemed equivalent to the disputed aggravating circumstance, sentenced him to nine months imprisonment. The S. had been brought to trial to answer for the crime referred to in art. 589 of the Italian Criminal Code because it caused the death of the CG, for fault consisted in inexperience, negligence, imprudence and non-observance of the rules on road traffic, because at the driving of the CG909XL vehicle and driving along via Giorgio De Chirico, with direction via Prenestina, it passed a bus stopped along the roadside for passengers’ ascent and descent operations, failing to particularly slow down the speed and paying attention to the passengers who left the vehicle, in competition with the negligent fact of the victim, who crossed the road running past the stationary public transport . 2. Opposing this decision, an appeal is made by the S. and the civil manager, GROUPAMA Assicurazioni SpA, through their defense counsel, deducing the lack of motivation regarding the proof of the existence of the causal link between the conduct and the event and in terms of quantification of the fault attributed to the offended person by only 40%. 3. The civil party presented a memorandum requesting the declaration of inadmissibility or in any case the rejection of the appeal.
Considered in law
4. The fact disputed by the accused is clearly described in the indictment reported above. The appellate judges, in reforming the first instance sentence, highlighted the following factual data considered peaceful. The victim, after getting off the bus of the “437” line, crossed the road, without the pedestrian crossing point, quickly and without looking; the accident occurred on a straight stretch of road, m wide. 10.52 divided into two lanes, each wide m. 3.20, separated by a traffic island; this road had a parking area on the right preceded by a rest area, reserved for the bus stop; the bus from which the pedestrian had descended had stopped irregularly outside the reserved area, where a FIAT UNO had stopped; the investing car that kept a speed at least equal to 70-75 Km / hour, at the moment of the arrival of the verbalizers, stood still on the right about fifty meters from the point of impact. Given the above, the Territorial Court has affirmed the criminal liability of the SA, since the conduct held by the accused, in the factual circumstances present at the time of the accident, is evident in contrast with the rules of diligence, prudence and appraisal dictated by the art. 141 CdS, since the road conditions at the time of the event required the adoption of a particularly prudent conduct, consisting in slowing down their vehicle, almost to stop it, in the predictable hypothesis that, even in the absence of a specific pedestrian crossing, some passengers he could go in front of the public transport vehicle from which he had just come down to cross the roadway. In those circumstances, the objections to the contested judgment appear to be groundless. The argumentative structure of the judgment of the territorial Court resists in fact the complaints made by the applicant. First of all, observe this Court: it must be reiterated that the situation of the places as described, with particular reference to the presence of the bus that had recently stopped, required the S. to place a further diligence with respect to that consisting in the mere observance of the regulatory speed limit precisely as a function of the danger of crossing by subjects who got off the bus. It is therefore not possible to define as “prudential” a speed that is widely considered to be above the maximum speed limit in an urban context, with a regular bus recently departed from the stop. Nor can it be argued that the defendant could not foresee that a passenger had descended from a bus, passing the bus when he was a short distance behind the bus, departed from just a few moments. According to the constant jurisprudential direction of this Court (see ex plurimis Section 4, Judgment n. 37853 of 2009), the road user has the obligation not only to regulate his conduct so that it does not constitute a danger to the safety of persons and property, but must also be concerned with the foreseeable irregularities in the behavior of others, which can lead to dangerous situations and consequently adapt their behavior. In fact it is precisely the norm that, in dictating the conduct to be maintained in certain situations in which there is an inherent dangerous character, formulates the judgment of predictability and avoidability. The behavioral norm is dictated precisely in order to prevent unlawful events and the recipient must necessarily comply with it. It should therefore be assumed that the driver of the car is to be considered exempt from liability when he has observed those rules aimed at preventing harmful consequences deriving from driving behavior in particularly dangerous situations. This, however, is not the conclusion reached by this Court, which has instead ruled that observance of the written precautionary rules nullifies culpable liability only when they are exhaustive of realistically enforceable prudential rules with respect to the specific one dangerous activity or situation. On the other hand, it may be a general fault when such rules are not exhaustive of the precautionary rules that can be adopted and, therefore, the agent must also comply with unwritten precautionary rules.
This is precisely the case of the rules on road traffic where the fulfillment does not exhaust the duties of the driver. More and more when, in consideration of the context of time and place, as described above, the road user is required to observe those unwritten precautionary rules with greater care. The drivers, in fact, remain bound to the obligation of neminem laedere, which characterizes the cases of assertion of responsibility for culpable crimes against life and individual safety, with the consequence that independently from the possible legislative discipline of the conduct put in place, the violation of this principle, even if not sanctioned by the law, still constitutes guilt for imprudence and determines criminal responsibility in case of death or injury. It must be noted, in fact, that the assessment of the predictability and, therefore, of the avoidance of the event must be brought forward to the moment in which the SA had perceived the presence of the bus coming from the opposite direction and that had recently made a stop, being, on the basis of common experience, predictable that a person, coming down from a bus, could imprudently and recklessly cross the road; it is at this time that the applicant had to start adopting a more vigilant behavior that would have avoided the event; the consideration excludes the possibility of a fortuitous event, consisting in that unforeseen and unpredictable event that suddenly becomes part of the subject’s action and cannot in any way, not even as a fault, be traced back to the psychic activity of the agent. In a similar case this Court affirmed that (Section 4, Judgment n. 44651 of 12/10/2005 Ud. Rv. 232618) in the case of a pedestrian’s investment, why the exclusive guilt of him for injuries can be affirmed suffered or due to his death, it is necessary that the driver of the investor vehicle has found himself, for reasons unrelated to any of his diligence obligations, in the objective impossibility of spotting the pedestrian and to observe his movements promptly, implemented quickly and unexpectedly. moreover, that no infringement of the rules of road traffic and those of common prudence can be found in the behavior of the driver. Furthermore, the driver has the obligation to constantly inspect the road, always keep control of the vehicle and foresee all the dangerous situations that the common experience includes. It therefore appears absolutely clear that if the SA had adhered to these prudential rules the claim would not have occurred or would have had less serious consequences, by virtue of a lower intensity of the impact. In light of these considerations it is furthermore excluded that a greater concurrence of guilt may be attributed to the victim of the accident, considering moreover that the judgments of the trial court regarding the quantification of the percentages of competition of the guilts of the guilty person and of the victim in a road accident constitute appreciation of fact incalculable in the Cassation, where the contested sentence – as in the case of the species formulates its own judgment based on the causal assessment of the negligent behavior of each of the co-responsible (see Section 4, No. 4537 of 12/21/2012 Rv . 255099). 5. Appeals must therefore be rejected with the consequent sentence pursuant to art. 616 Code of Criminal Procedure to the payment of court costs as well as the reimbursement of the costs of this grade in favor of the constituted civil parties that are liquidated as per the device
PQM
rejects the appeals and condemns the appellants to pay court costs as well as the reimbursement of the costs incurred by the civil parties LC, AC, MC in the present grade, settled in a total of € 3,500.00 plus VAT and CPA.
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ROVIGO ROAD ACCIDENT DEADLY COMPENSATION FOR DAMAGE, COMPENSATION FOR DAMAGE LEFT DAMAGE, COMPENSATION FOR DEATH DEATH ROAD ACCIDENT, ACCIDENT ACCIDENT, COMPENSATION ACCIDENT, ROAD ACCIDENT ACCIDENT IN CASE OF MORTALITY, ROAD ACCIDENT EXEMPTION, COMPENSATION DAMAGE ACCIDENT, COMPENSATION DAMAGE ACCIDENT ROAD ACCIDENT PEDESTRIAN, CALCULATION OF DAMAGE COMPENSATION ROAD ACCIDENT ROAD ACCIDENT DEADLY COMPENSATION DAMAGE, COMPENSATION DAMAGE LEFT DAMAGE, COMPENSATION DAMAGE DEATH ROAD ACCIDENT, ROAD ACCIDENT COMPENSATION, ROAD ACCIDENT ACCIDENT, RESTORED ACCIDENT, ACCIDENT ACCIDENT, ACCIDENT EXEMP DAMAGE FROM DEATH ROAD ACCIDENT, COMPENSATION FOR DAMAGES ROAD ACCIDENT PEDESTRY, CALCULATION OF DAMAGE COMPENSATION DEADLINE ACCIDENT – RAVENNA ROAD ACCIDENT DEADLY COMPENSATION FOR DAMAGE, COMPENSATION FOR DAMAGE LEFT DAMAGE, COMPENSATION FOR DAMAGE DEATH ROAD ACCIDENT, ROUTING ACCIDENT, COMPETITIVE ACCIDENTS, STAFF, ACCIDENT, ACCIDENT, ACCIDENT, ACCIDENT, ACCIDENT, ACCIDENT EXEMPTION, DAMAGE TO THE DEATH, COMPENSATION FOR DAMAGE TO DAMAGE, DAMAGE, DAMAGE, DAMAGE, DAMAGE, DAMAGE, DAMAGE, INJURY COMPENSATION FOR DAMAGE LEFT DAMAGE ROAD, COMPENSATION FOR DAMAGE TO DEATH ROAD ACCIDENT, ROUTE ACCIDENT REMEDY, ROAD ACCIDENT ACCIDENT IN CASE OF MORTALITY, ROAD ACCIDENT INDEMNITY, DAMAGE LEFT DAMAGE CLAIM, DAMAGE COMPENSATION FOR DAMAGE, COMPENSATION FOR DAMAGE ACCIDENT DEADLY ROAD ACCIDENT –
LUGO ROAD ACCIDENT DEADLY COMPENSATION FOR DAMAGE, COMPENSATION FOR DAMAGE LEFT ROAD DEED, COMPENSATION FOR DEATH DEATH ROAD ACCIDENT, ROAD ACCIDENT REMEDY, ROAD ACCIDENT, COMPENSATION IN CASE OF MORTALITY, ROAD ACCIDENT EXEMPTION, COMPENSATION DAMAGE ACCIDENT, COMPENSATION DAMAGE ACCIDENT ROAD ACCIDENT PEDESTRIAN, CALCULATION OF DAMAGE COMPENSATION ROAD ACCIDENT ROAD ACCIDENT DEADLY COMPENSATION DAMAGE, COMPENSATION DAMAGE LEFT DAMAGE, COMPENSATION DAMAGE DEATH ROAD ACCIDENT, ROAD ACCIDENT COMPENSATION, ROAD ACCIDENT ACCIDENT, RESTORED ACCIDENT, ACCIDENT ACCIDENT, ACCIDENT EXEMP DAMAGE FROM DEATH ROAD ACCIDENT, COMPENSATION FOR DAMAGE TO THE ROAD ACCIDENT PEDESTRY, CALCULATION OF DAMAGE FOR DAMAGE TO THE DEAD ROAD –
RIMINI ROAD ACCIDENT DEADLY COMPENSATION FOR DAMAGE, COMPENSATION FOR DAMAGE LEFT DAMAGE, COMPENSATION FOR DEATH DEATH ROAD ACCIDENT, ROAD ACCIDENT REMEDY, ROAD ACCIDENT, COMPENSATION IN CASE OF MORTALITY, ROAD ACCIDENT EXEMPTION, COMPENSATION DAMAGE ACCIDENT, COMPENSATION DAMAGE ROAD ACCIDENT PEDESTRIAN, CALCULATION OF DAMAGE COMPENSATION ROAD ACCIDENT ROAD ACCIDENT DEADLY COMPENSATION DAMAGE, COMPENSATION DAMAGE LEFT DAMAGE, COMPENSATION DAMAGE DEATH ROAD ACCIDENT, ROAD ACCIDENT COMPENSATION, ROAD ACCIDENT ACCIDENT, RESTORED ACCIDENT, ACCIDENT ACCIDENT, ACCIDENT EXEMP DAMAGE FROM DEATH ROAD ACCIDENT, COMPENSATION FOR DAMAGE TO THE ROAD ACCIDENT PEDESTRY, CALCULATION OF DAMAGE FOR DAMAGE TO THE DEAD ROAD –
CESENA ROAD ACCIDENT DEADLY COMPENSATION DAMAGE, COMPENSATION FOR DAMAGE LEFT DAMAGE, COMPENSATION FOR DAMAGE DEATH ROAD ACCIDENT, ROAD ACCIDENT, COMPENSATION ACCIDENT, ROAD ACCIDENT IN CASE OF MORTALITY, ROAD ACCIDENT EXEMPTION, COMPENSATION DAMAGE STAFF, DAMAGE ACCIDENT ROAD ACCIDENT PEDESTRIAN, CALCULATION OF DAMAGE COMPENSATION ROAD ACCIDENT ROAD ACCIDENT DEADLY COMPENSATION DAMAGE, COMPENSATION DAMAGE LEFT DAMAGE, COMPENSATION DAMAGE DEATH ROAD ACCIDENT, ROAD ACCIDENT COMPENSATION, ROAD ACCIDENT ACCIDENT, RESTORED ACCIDENT, ACCIDENT ACCIDENT, ACCIDENT EXEMP DAMAGE FROM DEATH ROAD ACCIDENT, COMPENSATION FOR DAMAGE TO THE ROAD ACCIDENT PEDESTRY, CALCULATION OF DAMAGE FOR DAMAGE TO THE DEAD ROAD –
The subjects covered by the lawyer are listed below. Sergio Armaroli:
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SIMULATED SALE OF REAL ESTATE COLLECTION LAWYER EXPERT
SIMULATED SALE OF REAL ESTATE COLLECTION LAWYER EXPERT
Given the above, the actors asked:
that the absolute simulation of the aforementioned sales documents was declared;
in the alternative, make sure that the first of these contracts between the deceased and (OMISSIS) integrated an indirect donation and was therefore subject to collation pursuant to article 737 of the civil code, with consequent condemnation of the defendant to give it to his paternal inheritance;
furthermore, they asked to declare that the second contract, between the deceased and the (OMISSIS) srl, was void since it constituted a donation without the formal and substantial requisites required by the law, with consequent condemnation of the said company to return the buildings that were the object of the inheritance of the same
It is convenient for reasons of logical priority to examine first of all the second ground of appeal, with which, denouncing violation of Article 110 of the Code of Civil Procedure and Article 457 of the Civil Code, in relation to Article 360 of the Code of Civil Procedure, n. 3), the ruling of the contested sentence is recognized, which recognized the procedural legitimacy of today’s counter-appellants to appeal as the heirs of (OMISSIS), deeming the documentation produced by them to be sufficient, namely the succession report, the notorious deed relating to the legitimate heirs and the publication of the holographic will of the dante cause of today’s resisters.
The reason is unfounded. 
The Territorial Court has in fact considered the suitability of the documentation produced for the purpose of proving the procedural legitimacy of the appellants of today’s resistance, noting the lack of specific dispute over the aforementioned documentation, with the exception of the dispute on the authenticity of the signature of the holographic will of ( OMISSIS) which instituted the heirs of the children (OMISSIS) and (OMISSIS).
In relation to the will, moreover, the Court correctly noted the inability of the procedure for the repudiation and verification of the signing of the private agreement, proposed by the appellants and today’s appellants, since it is a remedy that cannot be found in relation to documents originating from a third party; in the present case, for the purposes of contesting the validity of the signing of the will, as a prerequisite for the procedural legitimacy of the established heirs, today’s appellants should have instead filed a false complaint, an action that was not proposed in the present judgment.
As for (OMISSIS), not mentioned in the will, the quality of the spouse of the assignor is uncovered, it is worth recalling the peaceful principle of the accumulation of testamentary succession and legitimate succession.
That being said, it is noted that the very proposition of the present dispute, aimed at ascertaining the nullity of certain deeds of disposition of the deceased in order to subject the relative assets to collateral ex articles 737 cc and ss. implies tacit acceptance of inheritance.
And indeed, since the tacit acceptance of the inheritance can be inferred from the performance of a behavior that presupposes the will to accept the inheritance, it can legitimately be considered implicit in the experiment, by the called, of judicial actions, which being intended for the claim or defense of the property or for damages due to the unavailability of hereditary assets – do not fall within the conservative and management deeds of inherited assets permitted by Article 460 of the Civil Code, but go beyond simple maintenance of the state of affairs as existing at the time of the opening of the succession, and that, therefore, the person called would have no right to propose unless he assumed that he wanted to make his inheritance rights his own (Cass. 10060/2018; 13738/2005).
At this point the first, fifth and sixth grounds of appeal are examined, which deal with the same question about the limits of the absolute simulation test.
The first ground of appeal denounces violation and false application of articles 1414, 1417 and 2722 of the Italian Civil Code in relation to article 360 of the civil code, n. 3), censuring the ruling of the contested sentence which stated that the quality of third party for the purposes of simulation is proper not only to those acting in reduction pursuant to Article 553 of the Civil Code, but also to the heir acting in collation.
The fifth reason denounces the violation and false application of articles 1417, 2724, 2727 and 2729 of the civil code, in relation to Article 360 of the Code of Civil Procedure, n. 3), censuring the ruling of the sentence that affirmed the possibility for the defendants to prove the absolute simulation of the contract by any means, using the proof by texts and that for presumptions.
According to the applicants’ view, the Court based the simulation test of the two contracts essentially on the basis of presumptions, in the absence of the requirements established by law.
The sixth ground of appeal denounces the violation of articles 2727 and 2729 cc, deducing the absolute unsuitability of the indicative elements indicated by the territorial Court to prove the simulation, as they are completely devoid of significance, irrelevant, not univocal and arbitrary.
The foregoing reasons, in substance, censure the ruling of the territorial court, which, overturning the first judge’s assessment, considered admissible, in this case, the witness testimony and the presumptive test in relation to the absolute simulation test of the two deeds stipulated by the deceased (OMISSIS), respectively on 27.3.1996 and 5.4.1996, concerning the transfer of several real estate assets, the first to (OMISSIS), and the one after (OMISSIS) srl;
the assessment of the Territorial Court is also criticized for having established the presumptive proof of absolute simulation on the basis of elements devoid of gravity, precision and concordance, in contrast with the provision of article 2729 of the Civil Code
As for the assessment of the admissibility of the presumptive test, the decree of the territorial court is based on two autonomous rationes decidendi:
the main one, according to which the contestation of the admissibility of the testimonial and presumptive proof of the absolute simulation had been raised belatedly, since it had been asserted only in the conclusive appearance of the judgment of the first degree (from the sole defense of (OMISSIS)), despite the explicit reference to the presumptive data contained in the introductory document of the judgment;
from this, in acceptance of the appeal, the nullity of the ruling of the first judge who had ruled out the admissibility of the use of the presumptive trial in the absence of the ritual exception of the counterpart, and the possibility for the Court to re-examine the probative relevance of the clues, which had not been carried out by the first judge.
the other ratio decidendi, exposed “only for the sake of completeness of exposition”, according to which the test limits referred to in articles 1417 and 2722 of the Italian Civil Code do not exist with respect to the heir acting in collation; according to the territorial court, even in the case of action pursuant to article 737 of the civil code, the heir would be in a position of third party with respect to the deceased and could therefore assert the witness evidence and that of presumptions without limits.
However, the main ratio decidendi, according to which the objection of inadmissibility of the evidence based on presumptions was raised belatedly, does not appear to be drawn from the applicants, who, in the sixth plea, state that there was a detailed objection to the elements considered by the trial court as presumptive elements of the absolute simulation of sales, in the final part of the plea (page 36 of the appeal) they state that the previous conclusions, relating to the disputes on the existence of the requirements set out in articles 2727 and 2729 of the Civil Code, “make the question about the eventual by now irrelevant tardiness of the opposition for the use of presumptions (supported ex adverso and denied by the appellants: see the final appearance pages 46-48) and not exceeded in the opinion of the current appellants by the Court in a sentence with a reasoning that does not appear exhaustive and convincing as tautological
COMPANY RAVENNA CONTRACT RESOLUTION
RAVENNA RESOLUTION CONTRACT COURT APPEAL BOLOGNA
basic principle
starting up the company’s ability to function and produce profits cannot be conceived outside the company, nor can it be considered or transferred separately from it and its transfer necessarily accompanies the sale of the company, of which it does not it is an element but a quality (see Cass. n. 21417/2014, which affirmed the nullity, for lack of the object, of the preliminary contract of sale of a business unit concerning only the start-up, and the previous ones, dating back over time but never denied, cited in the explanatory statement Cassation No. 2857/1972, Court of Cassation No. 2110/1968, for the jurisprudence of merit see Court of Cagliari 20/5/2003, available on the Jus Explorer – Giuffré database ).
And in fact, it is argued that, being goodwill, the company’s ability to function and produce profits cannot be conceived outside the company, nor can it be considered or transferred separately from it and its transfer necessarily accompanies to the sale of the company, of which it is not an element but a quality (see Court of Cassation n. 21417/2014, which stated the nullity, for lack of the object, of the preliminary contract for the sale of a business unit concerning the only start-up, and the previous ones, dating back in time but never denied, therein cited in motivation Cassation No. 2857/1972, Court of Cassation No. 2110/1968, for the jurisprudence of merit see Court Cagliari 20/5/2003, available on the Jus Explorer – Giuffré database.
The contract on the basis of which both parties base their respective claims must therefore be declared void, as requested by the appellant in this case (and in the first instance by today’s appeal), due to the lack of the object and the relief of nullity precludes the examination of the reciprocal questions of resolution (questions that, as already observed, presuppose the existence of a valid contract: Cass. n. 14828/2012).
Mainly: having ascertained the illegitimacy of the withdrawal expressed by Ms WW and the termination of the contract due to the default of Ms WW, declare, as a result of the groundlessness in fact and right of the first instance claim, that no sum is required to pay the appellant in favor of WW for any reason as a result of the private writing of 04/27/2011;
consequently declare by virtue of the termination of the contract due to default by Ms WW, that Ms XX is entitled to withhold the sum of € 15,000.00, pay it as a down payment on the higher sum of € 30,000.00 as price per the sale of the commercial goodwill of the “Alfa” store located in Ravenna by virtue of the private agreement 27.04.2011;
In the alternative: as a partial reform of the sentence 118/13 of the Court of Ravenna, given the payment of the sum of 15,000.00 euros as an advance, in the denied hypothesis of ascertainment of the exclusive non-fulfillment of Ms XX declare it held to be returned of the sum of 15,000.00 euros, without counting any interest;
In further subordination: as a partial reform of the sentence 1118/13 of the Court of Ravenna, having ascertained the invalidity of the contract for the sale of goodwill pursuant to the private agreement of 04.27.2011 declare that Ms XX is required to repay the sum received on down payment, without counting any legal interest;
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