Forced Execution and Third-Party Purchaser Rights: Commentary on Order No. 9369 of 2024

The recent Order No. 9369 of 2024, issued by the Court of Cassation, addresses a crucial issue in Italian civil law: the rights of a third-party purchaser of mortgaged assets in the event of forced execution. This ruling is part of a complex legal framework, where the rules of the Civil Code and provisions relating to forced execution must be interpreted to ensure fair protection for the parties involved.

Rights of the Third-Party Purchaser

As established by the Court, a third-party purchaser of mortgaged assets, who has registered their purchase deed before the commencement of the execution proceedings, has the right to raise against the creditor all defenses that the debtor could have raised. This principle is based on Article 2859 of the Civil Code, which states that the third party cannot be penalized for the debtor's inaction.

• The third-party purchaser does not participate in the debtor's judgment of liability.
• They can raise defenses even if they are precluded to the debtor due to a final judgment.
• The prior registration of the purchase title is fundamental to legitimize such oppositions.

In general. A third-party purchaser of mortgaged assets, through a deed registered before the filing of the claim against the debtor, if they have not participated in the relevant proceedings, may raise against the enforcing creditor, pursuant to Article 2859 of the Civil Code, all defenses that the debtor could have raised without the preclusion of the final judgment. The negative consequences of the debtor's inaction cannot be attributed to the third party, with the result that their opposition to the real estate foreclosure may be based on defenses that would be precluded to the debtor, as they stem from the final judgment issued against them.

Implications of the Ruling

This ruling is of considerable importance, as it clarifies that the third-party purchaser is not merely a passive observer in the forced execution process. Indeed, the ability to raise defenses that the debtor can no longer assert due to the preclusion of a final judgment offers significant protection for the third party's interests, who might otherwise find themselves in a vulnerable position if their defenses were not recognized.

Conclusions

In conclusion, Order No. 9369 of 2024 represents a significant step in protecting the rights of third-party purchasers in the context of forced executions. The Court of Cassation has emphasized the principle that the protection of the rights of those who acquire mortgaged assets must be guaranteed, preventing the debtor's passivity from harming the legitimate interests of a third party. It is therefore crucial to pay attention to the priority of registration and the defenses that can be raised, so that the rights of all parties involved in the process are respected.