have a right not a sufficient condition for its legitimate exercise. In
Interesting ruling on abuse of the law:
Civil Appeal No 13208/2010
The Supreme Court has returned to the theme of 'abuse of rights : This is one of the most intriguing principles of civil law, would apply to a several key cases in compensatory rights and obligations of the parties when one of them is at a disadvantage.
HERE IS AN EXTRACT OF JUDGEMENT:
"... For established teaching jurisprudence, the principle of objective good faith, in the sense of mutual loyalty conduct of the parties, must accompany the contract in all its phases, from training to those in the interpretation and implementation (confr. Cass. Civ. June 11, 2008, No. 15476; Cass. Civ. September 18, 2009, No. 20106), resulting in, an inescapable corollary , ban, each party to the other to exercise the rights under law or contract to carry out a purpose other than that which these rights are preordained (confr. Cass. Civ. October 16, 2003, No. 15482) and the duty to act, even at the stage of the pathology report, so as to preserve as much as possible the interests of the party, and then first of all, the interest in the preservation of the bond .
JUDGEMENT OF THE FOLLOWING IN DETAIL: Court of Cassation, Section Three, May 31, 2010 No 13208 Conduct of case
a writ served September 17, 2002 the City of Termini Imerese intimated to eviction for arrears IGAR. Inc., presenter of a building, with adjoining spa area of \u200b\u200bhis property. According to the landlord, that quoted the same time intimated to the validation, the host society had failed in the payment of rent.
resisted IGAR Ltd., which claimed that the debt claimed by the city of Termini Imerese was extinguished by compensation with the highest credit, referred to the decision of the Court of Appeal of Palermo No 1051 of 1999, it gained against the entity lessor. Indeed, the defendant explained counterclaim for costs and damages from the administration intimante lite daring art. 96 cod. proc. Civ. In a ruling filed on
February 19, 2004 the court declared the termination of the lease for a grave breach of the conductor, dismissing the counterclaim brought by the defendant who was also ordered to pay the sum of € 185,924.48, as a penalty. Proposed by the company
unsuccessful appeal, the Court of Appeals, a ruling filed November 10, 2005, in partial reversal of the decision under appeal, declared inadmissible the application for an order of IGAR Ltd to pay the sum of € 185,924.48, thus eliminating its declaration. Confirmed in the rest of the contested decision.
For present purposes, the following reason for judging its conviction.
judicial compensation, as per art. 1243 cod. Civ. relied upon by the appellant, requires a finding of controcredito by the court before which the compensation is invoked, and can not be based on a claim whose existence depends on the outcome of a separate trial in progress and before its determination is now final. In this case, the controcredito claimed by the appellant was still sub judice, was proposed appeal against the ruling of the Court of Appeal of Palermo who had recognized him, so that lacked the requirement of certainty is necessary for the operation of the legal compensation that of the litigation. Could then have no bearing on the execution by the City, before the eviction, to the verdict, not having some of the Authority decided not to implement the procedures for collection of arrears and fees for the issuance of the building and having coercive rather shown they want to keep separate the two events emerged, one from the restructuring of the Hotel and Spa, the other, the ratio of rental agreement between the City and IGAR
Moreover, in the opinion of the Court, rejected the plea of \u200b\u200bcompensation , tout court remained overwhelmed even more complaints about the seriousness of the failure of the appellant complained that the presenter.
Finally, since the contested decision was reversed only on a marginal point of the dispute, is there any ground for an order for costs of litigation reckless, art. 96 cod. proc. Civ.
against this proposed preliminary appeal, also illustrated by memory, IGAR Hotels and Restaurants Management Company Ltd., making three reasons.
made a counterclaim the town of Termini Imerese, which also proposes conditional cross-appeal. Reasons for Decision
1 should first be prepared, pursuant to art. 335 cod. proc. Civ. the meeting of actions brought by IGAR Ltd. and the City of Termini Imerese against the same sentence.
1.1 grasping its first complaint is why the violation of the principle of correspondence between requested and delivered and Articles. 1241, 1242, 1243 Ref. Civ., failure, inadequate and contradictory reasoning on a decisive issue in the dispute, pursuant to Art. 360, first paragraph, nos. 3, 4 and 5 cod. proc. Civ.
shows the essential content of the treaty on April 10, 1989, documenting two separate contracts: the procurement for the renovation of the spa-hotel, and the rent, on the same property, and noted that the credit it owed the City for work done in the building has been judicially determined with sentence now res judicata, shows that the town of Termini Imerese, in a letter dated September 13, 2002, while contesting the calculation of statutory interest and currency appreciation on amounts paid to this title IGAR spa, however, had indicated its intent to want to give way, in settlement of the remaining debt in question, two money orders, amounting respectively to € 378,234.07 and € 52,563.52, to be issued in the months ahead.
Despite this, 16 September 2002, considering the claim of IGAR illiquid and unreasonable, and therefore not objectionable in compensation, the City Council authorized the Mayor to promote action for eviction for arrears pursuant to art. 658 cod. proc. Civ.
therefore supports the grasping that the court, in denying admission set-off, had applied the principles in terms of judicial compensation, when the company, opposing the claim that the City had already paid off, at least in Coinciding with the intention of that to pay its debt, had objected to legal compensation. The ruling was contested as violating the principle of correspondence between requested and delivered (Cass. civ. March 25, 2004, n. 5947). He also
the Curia wrong in rejecting the plea of \u200b\u200bland compensation on the assumption that failing that, in case, the requirement of certainty that Article. 1243 cod. Civ. demands for compensation for the legal proceedings, without considering that certainty is not necessary prerequisite to the occurrence of the first, since this function only the liquidity and the collectability of debts and credits between them. In any case, the requirement in question had actually taken during the proceedings, having been dismissed in February 4, 2005 the appeal against the ruling of the Court of Appeal of Palermo: in this context since there are more obstacles to the operation of compensation, the application of resolution should be rejected.
deducente also adds that the Court of Appeal, emphasizing the desire of the Town of distinguishing between the two legal proceedings, one concerning the compensation due to IGAR for restructuring, and the other the relationship between the City and rent the same IGAR, had violated the provisions of Articles. 1241, 1242 and 1243 cod. Civ., and the general principles in Matters of compensation, since that extinguishes the debt by two days of their coexistence, regardless of the wishes of the parties.
1.2 The complaints are unfounded, although the grounds of appeal should, in certain passages, to be supplemented and corrected, art. 384 cod. proc. civ ..
Pacific that the institution of judicial compensation, as per art. 1243, paragraph 2, no. proc. Civ., requires a finding of controcredito by the court before which the same compensation is invoked, and can not be based on a claim whose existence depends on the outcome of a separate trial in progress and before its determination is become final (Cass. civ. May 25, 2004, No. 10055; Cass. Civ. May 13, 2002, No 6820), the applicant entrusts the attack on the court resolving the choice of the following, consequential reliefs: a) compensation contended in court was the legal one, not the courts, b) the certainty is not required by law as a condition of legal compensation, c) also opine otherwise, the requirement certainty has occurred during the proceedings; d) since the compensation pay off legal debts from two days of their coexistence (art. 1242 cod. civ.), the application for termination for non-payment was rejected in each case.
1.3 A rebuttal of these criticisms the Board notes the following.
dell'impugnante Contrary to the assumption, the requirement of certainty is, so to speak, consubstantial with the institution of legal compensation. It is nothing short of obvious that it can not operate in reverse if the claim is disputed compensation in the amount or existence, as it excludes the objection that if the liquidity of credit the law requires that the compensation law occurs, such a requirement, along with those of homogeneity and enforceability of each other debit and credit items (confr. Cass. October 18, 2002, No. 14818).
Coming to the present case, the slope of proceedings concerning the claim of IGAR against the City of Termini Imerese, in the clear while explaining a trial court's approach, which has seen fit to call, to that extent, the principles that govern the institution of judicial compensation, requires believing that it was properly denied the operation of the legal compensation despite the intention the City to pay the sum capacity by the Court of Appeal of Palermo. And indeed that determination, taken against a court order temporarily executive and then, so to speak, needed, did not exclude the will of the entity to insist on disputing claims of the party, so much so that the appeal already filed against delivery of local Curia, was not at all given up.
shareability It follows that the criticisms made by the applicant to enhance the willingness of the entity to keep separate the conflicting situations and Mirror payable and receivable (definitely improper enhancement, compared the principle that the compensation work regardless of any agreement reached between the parties and without known how the borrowers as recited art. 1285 of the Civil Code of 1865), does not help because all'impugnante not detract from the estate of the impact on the operation of the compensation of the persistent complaints of the debt claimed by the tenant.
1.4 Is it an actual requirement of certainty that was achieved during the proceedings, having been dismissed by a sentence no 2273 of 4 February 2005, proposed by the territorial appeal against the decision of the Court of Appeal of Palermo.
And then the first observation that arises is the fact that the res judicata of the sentence to pay to the City of IGAR the claim that is opposite in compensation, and the related question of the impact of such a ruling on the assessment of the failure of the conductor are not processed in any way in the decision contested and supplement, therefore, a new issue. Place then the grounds of appeal must invest under penalty of inadmissibility issues already included in decidendum thema of the appeal proceedings and that it is precluded from bringing of complaints that its earlier approach, put the foundation of applications and licenses several exceptions or introducing, however, cross-evidence-based reconstructive really new and different from those attached in the previous phases of the proceedings, the applicant had the burden, remained completely unnoticed, to attach the deduction occurred before the trial court made such a subtle problem, along with, for the principle of self-sufficiency appeal, which act in the proceedings before him had done, in order to enable the Court to visually check the veracity of this assertion (confr. Cass. Civ. sect. lav. July 28, 2008, No. 20518; Cass. civ . 1, 31 August 2007, No. 18440).
Neither is true, as claimed by the applicant (page 20 of application), which the Court of Appeal has decided in constant dispute on the credit side. A closer look In fact, the case was taken by it in a collegial decision of October 28, 2005 hearing where the hearing to discuss the appeal had already been celebrated on 28 October 2004 and the decision published on 4 February of the following with number 2273. Rather, the relief, contained in the preliminary appeal, so the question of controcredito boasted by today 's appeal is still sub judice because the appeal is not defined (...) shows that it was not brought to the attention of the judging panel.
1.5 is not superfluous to add, for the ideas, which will go away to take the examination of the second half, the central legal issue placed by the applicant - the cost of clearing the legal requirements of which are completed in the course of proceedings for any infringement on the resolution that originated on the question - could hardly be answered in the absence of an accurate reconstruction of the time when have gradually arisen items receivable hinc et inde boasted, detection is essential in order to establish the day, the two debts have come to coexist, it has produced the story extinctive.
The first ground of appeal must ultimately be rejected. 2.1
its second half, the plaintiff alleges violation of Articles. 112 cod. proc. Civ., 1175 and 1375 cod. Civ. and the general principle of good faith, omitted or insufficient motivation to a decisive issue of the case, art. 360, first paragraph, nos. 3, 4 and 5 cod. proc. Civ.
notes, quoting verbatim the content of the appeal (pages 7 and 9), which in the appeal was particularly stressed that the Municipality, failing to retain the sums paid to IGAR what kind due to license fees location, had breached its obligation to act fairly and in good faith.
Despite this, the judging panel had ruled nothing about, so the vice of non-delivery. He reviewed the highlights of the story that is the case, and relied on the concept of abuse the right, grasping the back stress that the conduct of the City of Termini Imerese - whose debt, however, far outperform the extent of the claim that it owed by IGAR for lease - it was absolutely contrary to good faith , it is clearly designed to determine the default of the tenant to ask for non-payment after the eviction (confr. Cass. No 20399 of 2004).
2.2 The criticisms are well founded.
The Territorial Court, the outcome of a widespread exposure of the complaints made by the appellant at the point of gravity of the alleged infringement to the driver, dismissed the appeal on grounds of considering them in terms purely assertive, absorbed by the rejection of set-off.
There is thus evidence of merely apparent justification, which fails to acknowledge, despite the stresses dell'impugnante, the undeniable characteristics of the relationship between the parties on the development, if not allowed to exclude outright breach of contract conductor, called for timely checks on its severity, in a regulatory framework in which to consolidate living law, the assessment must be made in the same way and objective parameters related to the overall economy of the report, and subjective criteria relating to behavior of both parties and the possible innocence their conduct (confr. Cass. Civ., February 18, 2008, n. 3954).
In particular, the trial court could evade the assessment of the conduct of the landlord in terms of fairness and good faith, it is indisputable that the failure to deduct the fees claimed by IGAR although the amounts credited by the city, was the necessary step for the next eviction for arrears, which occurred with a very peculiar sense of timing, all the more so that non-compensation, however, specifically opposed by the other party, forced the institution to which payments well could have avoided if he had not had the clear intent - of which will be scrutinized correspondence to an interest worthy of protection under the laws - to crystallize and render irreversible the failure of the conductor.
2.3 apply with regard to the fact that to established teaching jurisprudence, the principle of objective good faith, in the sense of mutual loyalty conduct of the parties, must accompany the contract in all its phases, from training to those of interpretation and running (confr. Cass. Civ. June 11, 2008, No. 15476; Cass. Civ. September 18, 2009, No. 20106), resulting in, an inescapable corollary, the banning of each party to exercise rights to the other that derive from law or contract to achieve a purpose other than that these rights are preordained (confr. Cass. Civ. October 16, 2003, No. 15482) and the duty to act, even at the stage of the pathology report, so as to preserve as much as possible the interests of counterparty, and therefore, first of all, the interest in conservation of the constraint.
Moreover, the absence of a provision in our code that sanctions, as a general abuse of the law - which is the real critical point of judicial responses solicited from time to time on the point - did not prevent, in a careful case- the subject positions in suffering, to sanction the illegal so-called brutal interruption of the claim, namely the withdrawal of a bank by a ratio of credit all the time in which, although permitted by agreement, it bears connotations of arbitrariness (confr. Cass. Civ. February 21, 2003, No. 2642, Cass. Civ. October 16, 2003, No 15 482 cit.) or to strike with disability affected by the shareholders' resolution ultra vires of the majority, as adopted for the sole benefit of itself and to the detriment of minority shareholders (confr. Cass. Civ. June 11, 2003 , No. 27387), so far as to envisage, in contracting, in the name of the inescapable duty of solidarity in art. 2 of the Constitution, a trade union - in effect amending or supplementary - status negotiations (confr. Cass. Civ. sect. a. November 15, 2007, No 23726; Cass. Civ. April 20, 1994, No 3775; Cass. Civ. September 24, 1999, No 10511; Cass. Civ., sec. a., September 13, 2005, No 18,128) and a review of the reasonableness of individual clauses in terms of balancing the conflicting interests of paciscenti (confr. Cass. Civ. September 18, 2009, No. 20106).
2.4 With particular regard to the problems underlying the present case, the Board believes that the appreciation of the unfairness of the conduct of the party seeking the termination for default despite having other ways to protect their interests, can not but have an impact on to the extent of it, that abuse creditor of the benefit is the interface. In fact it seems not doubt that the finding of pretext for the conduct of the actor in resolution is resolved in the recognition of minor infringement, having regard to the interest of, an interest, that is, that could be preserved without resorting to half extreme ablation of the bond.
inemendabile The lack of argument on such appeal the ruling, a subtle problem with profiles of the dispute, the subject of specific complaints remained essentially unanswered, requires the acceptance of the second ground of appeal.
The decision should therefore be quashed, in relation to the plea accepted with reference to the trial judge who will assess whether the conditions for the resolution of the lease, applying the principles first set and taking into account deductions dell'impugnante abusive behavior of the counterpart and the overall context of relations between the parties .
Welcoming the second reason, however, remain absorbed in the third, to urge condemnation of The damages for vexatious litigation pursuant to Art. 96 cod. proc. Civ. and the only reason for the conditional cross-appeal brought by the city of Termini Imerese, in order to enforce the inadmissibility of the appeal.
PQM
The Court meets appeals. Rejects the first plea of \u200b\u200bthe main action, accepts the second, third and absorbed the appeal. Cash appeal the ruling in relation to the plea accepted and also refers to the costs of these proceedings to the Court of Appeal of Palermo in a different formation.
