Prescription of Rights and Absolute Simulation: The Supreme Court's Important Clarification in Order No. 17534/2025

In the complex landscape of civil law, the correct interpretation of rules on prescription and contractual simulation is of crucial importance for the protection of the rights and interests of the parties involved. The Supreme Court of Cassation, with its recent Order No. 17534 of 30/06/2025, has provided a fundamental clarification regarding the commencement of the prescription period in the presence of a contract affected by absolute simulation, offering an interpretation that strengthens the position of creditors and draws a clearer line between the different actions available to them.

The ruling, which quashed and remanded the decision of the Court of Appeal of Naples of 06/07/2023 in the case between E. and A., focuses on a technical but far-reaching aspect: when does the prescription period for a right that one intends to assert begin to run, if during that time a lawsuit is pending to ascertain the absolute simulation of an act that obstructs that right? Let's delve into the reasons and consequences of this important decision.

Absolute Simulation and Its Impact on Assets

Absolute simulation, governed by Article 1414 of the Civil Code, occurs when parties enter into a contract with the understanding that it will produce no effect between them. The most common example is the sale of an asset that is not actually intended to be transferred, but is carried out for external purposes, often to shield the asset from creditors' claims. An absolutely simulated contract is void and, as such, produces no effects from the outset.

The problem arises when a creditor, seeing an asset leave their debtor's estate through a simulated act, intends to take action to protect their claim. The law provides specific tools, such as the revocatory action (Art. 2901 of the Civil Code), which allows the creditor to have acts of disposition of assets by which the debtor prejudices their rights declared ineffective with respect to them. However, the action for simulation has a different nature, aiming to ascertain the nullity of the act itself.

Prescription of Rights: The “Dies a Quo” in Context of Concealment

Prescription is a legal institution (Art. 2934 of the Civil Code) that leads to the extinction of a right due to its non-exercise for a specific period. The crucial point is to establish the moment from which this period begins to run, the so-called “dies a quo”. Article 2935 of the Civil Code states that "prescription runs from the day on which the right can be asserted."

But what happens if the right is objectively "concealed" by a simulated act? This is where Article 2941, no. 8 of the Civil Code comes into play, which provides for a suspension of prescription when the debtor has fraudulently concealed the existence of the debt. Although simulation is not technically a concealment of the *debt*, the Supreme Court has recognized an analogy of effects with the concealment of the *right* by the creditor.

Order No. 17534/2025: Overlapping Effects

The Supreme Court, in Order No. 17534 of 2025, addressed precisely this delicate issue. In the specific case, it concerned a right arising from a prior preliminary contract, the execution of which was hindered by a real estate sale contract that was considered absolutely simulated. The Court of Appeal had held that the prescription of the right could run even during the lawsuit aimed at asserting the absolute simulation.

The Supreme Court, however, overturned this decision, affirming a principle of great importance:

In terms of the commencement of prescription, the declaration of nullity for absolute simulation is comparable to the effect of the revocatory action, as, according to Article 2941, no. 8 of the Civil Code, even in simulation, the outcome consists of a concealment of the right, in a broad sense, towards the creditor.

This means that, according to the Court, the practical effect of absolute simulation, for the creditor, is similar to that of a revocable act: in both cases, the debtor's assets appear diminished or altered in a prejudicial way, and the creditor's right is, in fact, "concealed" or made more difficult to exercise. Therefore, the prescription of the right cannot begin to run until the simulated nature of the act has been definitively ascertained (with the judgment becoming final). This is because, before such ascertainment, the creditor is not in a full position to assert their right with legal certainty.

The implications of this decision are manifold and significant:

• **Greater Protection for Creditors:** Creditors are now better protected from the risk that prescription will expire while they are engaged in lengthy and complex legal actions to expose simulated acts.
• **Systemic Coherence:** The ruling realigns the interpretation of the “dies a quo” for prescription in cases of simulation with the general principle of protecting the creditor in the face of the concealment of a right, referencing Article 2941, no. 8 of the Civil Code.
• **Legal Certainty:** It is clarified that the full availability of the right for the creditor is realized only with the legal certainty derived from the final judgment on the simulation.

Conclusions and Practical Implications

Order No. 17534 of 2025 by the Supreme Court of Cassation represents a firm point in jurisprudence on prescription and absolute simulation. It underscores the importance of considering the substance of legal effects, rather than mere form, in determining when a right can actually be exercised.

For creditors, this ruling offers fundamental reassurance: the time required to ascertain the simulation of an act will not nullify their right due to prescription. For legal professionals, however, it requires particular attention to the final judgment declaring absolute simulation, identifying it as the true “dies a quo” for the commencement of prescription for rights that depend on such ascertainment. A significant step forward towards greater justice and protection in Italian civil law.