Contract Nullity on Appeal: A Crucial Clarification from the Court of Cassation (Order No. 15277 of 2025)

In the complex landscape of Italian civil procedural law, the management of exceptions and new claims during the appeal phase has always been a point of particular delicacy. The recent Order No. 15277 of 09/06/2025 from the Court of Cassation, presided over by T. L. and drafted by C. D., fits precisely into this context, providing a clarifying interpretation of great practical relevance for lawyers and legal professionals. The decision, which saw R. and C. pitted against each other, addresses the issue of the claim for declaration of contractual nullity raised for the first time on appeal, a topic on which jurisprudence has often offered food for debate.

The general principle, expressed by Article 345, paragraph 1, of the Code of Civil Procedure, provides for the inadmissibility of new claims on appeal. However, contractual nullity, due to its nature and its implications for the legal system, has always enjoyed a special regime. The Court of Cassation, with this ruling, reinforces an already consolidated trend but clarifies it with a clarity that deserves attention.

Contract Nullity: A Safeguard of the Legal Order

Before delving into the merits of the decision, it is essential to recall the nature of contractual nullity. According to Article 1418 of the Civil Code, a contract is null and void when it is contrary to mandatory rules, when one of the essential requirements (agreement, cause, object, form) is missing, or in other cases established by law. Nullity is the most serious form of contract invalidity and, unlike voidability, can be asserted by anyone with an interest and can be raised ex officio by the judge (Article 1421 c.c.). This ex officio consideration is the pivot on which the present ruling is based.

Nullity serves public order needs, protecting fundamental principles of the legal system. For this reason, the legislator has provided for a procedural regime that allows the judge to intervene even in the absence of a specific party claim, ensuring that fundamentally invalid acts cannot produce legal effects.

Claim for Nullity on Appeal: The Clarification by the Court of Cassation

The issue addressed by Order No. 15277/2025 concerns the fate of a claim for nullity raised for the first time in the second-instance judgment. The Court of Cassation, referring to previous trends, particularly those of the United Sections (see No. 26243 of 2014), reiterates a crucial principle:

A claim for contractual nullity, raised for the first time on appeal, is inadmissible pursuant to Art. 345, paragraph 1, of the c.p.c., except for the judge's power-duty in the appellate court to convert it and examine it as a legitimately formulated exception of nullity, pursuant to paragraph 2 of the same Art. 345, given the mandatory nature of the ex officio consideration of any possible cause of nullity, after informing the parties pursuant to Art. 101, paragraph 2, of the c.p.c., with the consequence that the claim should not be declared inadmissible due to its novelty but examined on the merits, following its conversion.

This passage is of extreme importance. The Court clarifies that, although a *new* claim for nullity is formally inadmissible on appeal pursuant to Article 345, paragraph 1, of the c.p.c., the judge cannot simply declare it as such and close the matter. On the contrary, they have a precise “power-duty” to reclassify that claim as an exception of nullity, legitimately formulable pursuant to paragraph 2 of the same article. This stems from the mandatory nature of the ex officio consideration of any possible cause of nullity, a principle that requires the judge to ascertain the validity of the legal act on which the dispute is based, even without a specific party request.

The ruling also emphasizes another fundamental aspect: the need to respect the adversarial principle. Before proceeding with the conversion and examination on the merits, the judge must inform the parties of the issue, pursuant to Article 101, paragraph 2, of the c.p.c., allowing them to express their views. This ensures that no party is caught by surprise and can fully exercise their right to defense.

Practical Implications and Legal References

The consequences of this interpretation are significant:

• **Overcoming Formal Inadmissibility:** The claim for nullity is not declared inadmissible due to its novelty but is procedurally 'saved' through conversion into an exception.
• **Examination on the Merits:** Once converted, the exception of nullity must be examined on the merits by the appellate judge, thus preventing a matter of such serious invalidity from remaining unresolved.
• **Strengthening the Judge's Role:** The active role of the judge in ensuring the correct application of mandatory rules and the protection of the legal order is reaffirmed, even in the appellate phase.
• **Protection of Adversarial Principle:** The ruling highlights the importance of Article 101, paragraph 2, of the c.p.c., which requires the judge to provoke adversarial proceedings on issues that can be considered ex officio, ensuring transparency and party participation.

The Court of Cassation explicitly refers to several provisions, including Articles 1325, 1418, and 1421 of the Civil Code, which define nullity and its ex officio consideration, and Articles 99, 101 paragraph 2, 112, and 345 of the Code of Civil Procedure, which govern the principle of claim, adversarial proceedings, and preclusions on appeal.

Conclusions

Order No. 15277 of 2025 from the Court of Cassation represents an important piece in Italian jurisprudence on contractual nullity and civil procedure. It confirms the trend according to which the public nature of nullity imposes a duty of intervention on the judge, even on appeal, overcoming the formal preclusions set for new claims. This means that the validity of a contract, the foundation of every legal relationship, cannot be ignored for mere procedural reasons but must always be subject to careful judicial review, in full respect of adversarial proceedings. A decision that guarantees greater legal certainty and more effective protection for the parties, reaffirming the principle that substantive justice must always find its way even within procedural frameworks.