The Importance of the Principle of Apparent Right: Commentary on Order No. 18345 of 2024

The recent Order No. 18345 of July 4, 2024, by the Court of Cassation once again highlights the principle of apparent right, governed by Article 1189 of the Civil Code. This ruling is particularly relevant as it clarifies how and when this principle can be invoked, especially in complex contexts such as the payment of mediation indemnity. Let's delve into the details of this order and its implications.

The Principle of Apparent Right: Definition and Application

The principle of apparent right applies in situations where there is a discrepancy between the factual reality and the legal situation. In the case examined by the Court, a discussion arose concerning an excusable error by a third party who made a payment without verifying the seller's actual legal status. This leads to emphasizing two fundamental aspects:

• The good faith of the third party involved.
• The reasonableness of the reliance that the third party placed on the factual situation.

It is important to note that the principle of apparent right cannot be invoked by someone who is at fault, i.e., negligent, for failing to adequately check the legal situation. In this case, the Court ruled that the buyer of a plot of land could not rely on this principle, as they had neglected to inquire about the actual ownership of the boundary wall.

The Judge's Role and the Limits of Review

Another crucial aspect highlighted by the ruling concerns the assessment by the trial judge. The conclusions reached by the judge can be subject to review by the Court of Cassation, but only if they are illogical or contradictory. In this instance, the Court found that the judge had correctly assessed the situation, excluding the applicability of the principle of apparent right in favor of the buyer.

Principle of apparent right - Conditions - Identification - Invocation by the subject in specific or general fault - Exclusion - Assessment of facts by the trial judge - Reviewability in Cassation - Limits - Case concerning the payment of mediation indemnity pursuant to art. 874 of the Civil Code. The principle of apparent right pursuant to art. 1189 of the Civil Code applies when there is a factual state that differs from the legal situation and an excusable error by the third party regarding the correspondence of the former to the legal reality, so that the judge - whose conclusions on this point are reviewable in Cassation if illogical and contradictory - must investigate not only the good faith of the third party but also the reasonableness of their reliance, which cannot be invoked by someone who is at fault, attributable to negligence, for having neglected the obligation, arising from the law itself, as well as from common prudence, to ascertain the reality of things, which is easily verifiable. (In this case, the Supreme Court excluded the applicability of the principle in favor of the buyer of a plot of land who had paid the indemnity pursuant to art. 874 of the Civil Code to the seller, who was not the owner of the adjacent plot, neglecting to inquire about the actual legal situation concerning the boundary wall).

Conclusions

Order No. 18345 of 2024 represents an important reflection on the principle of apparent right and the limits of its application. It underscores the importance of accurate verification of the legal situation and the obligation to act with diligence. For legal professionals, it is essential to consider these aspects when advising clients, so that they can avoid legal issues related to errors in judgment within the sphere of real estate rights.