Simulation in contracts: commentary on judgment Cass. civ., Sec. II, Ord. no. 23598 of 2024

The judgment of the Court of Cassation no. 23598 of 2024 offers an interesting point of reflection on the issue of simulation in contracts and the right of reduction of donations in favor of forced heirs. The Court examined a case where a forced heir, B.B., challenged two sale agreements entered into by their mother in favor of their brother A.A., arguing that these agreements actually concealed a donation.

The context and the decision of the Court of Appeal

The proceedings originated from B.B.'s request to declare two sale agreements null and void, arguing that they were invalid donations due to lack of formal requirements. The Court of Appeal of Bologna, accepting the appeal, ascertained the simulation and declared the nullity of the contracts for defect of form, as they were not drawn up in the presence of witnesses.

A forced heir is admitted to prove, as a third party, the simulation of a sale made by the deceased through witnesses and presumptions.

The Court established that, in the case of an appeal by a forced heir, the latter acts as a third party and not as an heir, allowing for greater evidentiary freedom. This aspect is crucial as it allows the forced heir to defend their rights without having to face the evidentiary limitations applicable to the parties involved in the agreements.

Burden of proof and simulation

A central point of the decision is the burden of proof in cases of simulation. The Court clarified that in the case of simulation of a sale and purchase agreement, it is the buyer who must prove the payment of the price. B.B. was therefore able to support their claim with sufficient indications of the fictitious nature of the sale agreements, such as the kinship relationship and the absence of proof of payment.

• A forced heir can act as a third party.
• Burden of proving the payment of the price lies with the buyer.
• Indications of simulation: kinship and declarations of payment.

Implications of the judgment

The judgment under review reiterates established principles regarding inheritance law and simulation, emphasizing the importance of ensuring the protection of the rights of forced heirs. The decision of the Court of Cassation aligns with previous case law, stating that in the absence of counter-declarations, proof of simulation must be based on circumstantial evidence and presumptions.

Furthermore, the Court highlighted that the declarations contained in notarial deeds, which attest to payment, are not sufficient to prove the actual payment of the price, as they can be considered mere declarations in favor of the buyer.

Conclusions

In conclusion, the judgment Cass. civ., Sec. II, Ord. no. 23598 of 2024 represents an important intervention by the Court of Cassation on the issue of simulation in contracts and the protection of the rights of forced heirs. The decision clarifies the burden of proof and the rights of disinherited forced heirs, thus offering greater protection for those who may be harmed by disguised acts of asset disposal.