- Tribunale di Pisa
SALES CONTRACT - BETWEEN TWO ITALIAN INDIVIDUALS - REFERENCE TO UNIDROIT PRINCIPLES TO INTERPRET AND SUPPLEMENT APPLICABLE DOMESTIC LAW (ITALIAN LAW)
SALES CONTRACT OF IMMOVABLE GOOD SUBJECT TO CONDITION (ERECTION OF A WALL APPROVED BY COMPETENT AUTHORITY) - ON CONCLUSION OF THE "PRELIMINARY" CONTRACT BUYER PAID SELLER THE AGREED DEPOSIT WHILE SELLER ENSURED THE BUYER TO HAVE FILED THE APPLICATION FOR THE REGULARISATION OF THE WALL - WHEN THE REGULARISATION WAS ULTIMATELY DENIED, BUYER REQUESTED THE RETURN OF THE DEPOSIT - THE COURT ORDERED SELLER TO RETURN THE DEPOSIT IN VIEW OF THE FACT THAT HE HAD CREATED IN THE BUYER THE LEGITIMATE EXPECTATION THAT THE REGULARISATION OF THE WALL WOULD BE GRANTED - IN SUPPORT OF ITS DECISION THE COURT INVOKED THE PRINCIPLES OF GOOD FAITH AND OF THE PROHIBITION OF VENIRE CONTRA FACTUM PROPRIUM AS LAID DOWN IN ARTICLES 1.7 AND 1.8 OF THE UNIDROIT PRINCIPLES
Ms A brought an action against Ms B for the return of the deposit agreed at the conclusion of the ‘preliminary contract’ for the sale of an immovable property. The sale was subordinated to a condition (the regularisation of a wall from the competent authority). Since the municipality denied such regularisation, Ms A claims the return of the deposit because of the fulfilment of the condition.
The court considers the claim well founded. In particular, in relation to a specific point raised in defendant’s legal argument, the court specifies that the condition cannot be considered impossible on the ground of an objective assessment of the events. Moreover, the court notes that Ms B pointed out in the ‘preliminary contract’ that the request for regularisation had already been filed creating in the counterparty the legitimate expectation that the wall could have been regularised. In this context, the court recalls UNIDROIT Principles in order to affirm that the legitimate expectation is an expressly codified principle, quoting for that purpose Articles 1.7 and 1.8.
(cf. C. Martinetti in "Perspectives in Practice of the UNIDROIT Principles 2016", IBA Publication 2019, p. 171)