Civil Cassation Chamber I, 14 April 2010, No 8962
The CTU does not is a means test, but half assessment of the evidence already obtained in the process. T
However, under the guidance of the Supreme Court - reiterated most recently by the decision under review - to consider it an objective source test when situations are the subject of fact made only on the basis of specific technical skills.
When a finding of particular sets of circumstances can only be performed with the aid of special technical knowledge "... derogation is allowed even at the limit of the prohibition to carry out exploratory investigations ... being, in this case allowed the CTU also obtain the information necessary to answer the questions, although not resulting from documents produced by the parties, provided that it is made accessories and falling within the strict technical advice, and not of facts and situations, being placed directly on the basis of the claim or the exceptions of the parties, must also be tested by the same "
(.... and so, when it comes to technical matters not otherwise occur, the burden of proof in a charge ends up being reduced to mere allegation)
BELOW THE FULL JUDGEMENT
Cass . Civ. Sec. I, 14.04.2010, No 8962
Conduct of case
apparent from the contested decision that a private agreement with the (omitted) Ltd was acquired by PA SOIES srl eight thousand shares of the par value of one thousand Pounds each, pledging to pay an additional ten million lire as a consideration of previous administrative tasks performed by the seller.
in turn became manager of the company, however, found SA had debts L. 38,496,767 concealed by the seller, which, moreover, had wrongly placed in Bonds change movement delivered to the obligation on the additional compensation.
SA PA had therefore sued for damages.
His application was rejected in both grades.
But the Supreme Court, on application by the plaintiff, had overturned the decision on appeal, noting that failure to appeal the writing of the transfer of shares not precluded the claim for damages under art. 1440 cc and absorbed by declaring a plea on costs. With the ruling
hour appeal to the Supreme Judge of the court held that the complaint regarding the regulation of costs had been abandoned in because it does not revived, and in reiterating the rejection of the application, found that SA has failed to prove the basis of his claim, why did not document which had been the representation of the balance sheet of the company at the time of purchase of the shares nor the owner who claims to have subsequently discovered. So that is not even eligible for a technical expert accountant, who could not make up for a lack of evidence, and relied on oral testimony by the plaintiff concerns irrelevant.
appeal against a sentence now apply for judicial SA and proposes four grounds of appeal. He did not explain PA's defenses.
Reasons for Decision
1. The first reason, the applicant alleges infringement of art. 112, 116 and 384 CCP, art. 1321 et seq., 1362 and 1383 ff cc, with the second flaw in the reasoning to the facts relevant to the application of the rules violated. He claimed to have tried already with the documents enclosed with the summons, the amount of debt hidden by PA, then also confirmed by witness statements, which indicated nell'Inail largest creditor. It complains that the allegations made in regard to the decision of First Instance of the referring courts have not pronounced.
adds that however one can not charge the lack of a formal statement of liabilities at the time of sale, defined on the basis of a notebook drawn from a fist-PA. E 'with the rough draft that the judges of the merits were to compare the documents produced in court by the plaintiff, because the balance sheet is drawn up precisely on the basis of accounting documents.
The third reason, the applicant alleges violation of Articles. 61 and 244 CCP, claiming the erroneous denial of both the accounting advice and the evidence of witnesses.
claimed to have proven the facts on which was carried out accounting advice, having produced both a balance sheet prepared by PA and compare it in the records. He added that the accounting advice, however, also could be allocated to the acquisition of a trial, and that further information the consultant would have been acquired through oral testimony erroneously denied.
The fourth reason, the applicant alleges infringement of art. 91 and 384 of the CPC, erroneously claiming that the national courts have considered the complaint regarding the regulation waived the costs. Censorship, however, his order for costs.
2. Are reasonable and absorbing the first three grounds of appeal, in so far as criticizing the non-acceptance of the consultancy firm. Not v 'is no doubt, in fact, that "no provision of expert witness by the court, which is alleged to be necessary, is censured by the seat of legitimacy in terms of lack of reasoning, where the advice is aimed to relieve the party from the burden of proof required for exploratory research of the facts, circumstances or unproven "(Court of Cassation, sez. 1, July 5, 2007, No. 15219, M 598314) .
However, when the party requests an accounting advice on the basis of document production, the court may not qualify as exploration without consulting the documentation produced to show that it would still be irrelevant. nature has in fact-finding consultation aimed at finding facts, circumstances or evidence not tested by the party who submits (Court of Cassation, sez. 1, July 5, 2007, No. 15219, 598 314 m). And according to the jurisprudence of this court is permitted to waive the limit even inherent in the prohibition to perform exploratory investigations, "when the finding of particular sets of circumstances can only be performed with the help of special technical knowledge, as in this case allowed the CTU also obtain the information necessary to answer the questions, although the resulting from documents produced by the parties, provided that it is made accessories and falling within the strict technical advice, and not of facts and situations, being placed directly on the basis of the claim or the exceptions of the parties, must also be tested by themselves "(Court of Cassation, sez. 3, 14 February 2006, No. 3191, 590 615 m).
In this case however the judges of the merits have been limited failure to detect the production of the company's balance sheet at the time of sale of shares and, subsequently, the discovery of hidden debt, without considering the drafting of a position is technical operation, which requires special expertise in the analysis and coordination of accounting documents.
The sentence should therefore be quashed by appeal court, as a result of the unjustified refusal of admission accounting advice requested by the plaintiff.
It absorbed the plea of \u200b\u200bthe costs.
PQM
The Court, accepting the first three grounds of appeal, absorbed the quarter, cash and also refers to the sentence appeal for the costs to the Court of Appeal of Cagliari in a different formation.
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