Preliminary Agreement and Judgment ex Art. 2932 c.c.: The Court of Cassation on the Effectiveness of Transfer in Case of Bankruptcy (Order No. 16203/2025)

The preliminary agreement, a widely used instrument in Italian contractual practice, is an agreement whereby parties undertake to enter into a future definitive contract. However, its execution can present complexities, especially when unforeseen events occur, such as the bankruptcy of one of the parties or of the company that is the subject of the contract. Order No. 16203 of June 16, 2025, issued by the Court of Cassation (Reporting Judge M. Mocci, President M. Falaschi), provides fundamental clarification regarding the temporal effects of judgments ordering the specific performance of such an obligation, pursuant to Article 2932 of the Civil Code.

The Preliminary Agreement and Specific Performance: A Delicate Balance

Article 1351 c.c. requires that the preliminary agreement be drawn up in the same form as the definitive contract. Its function is to bind the parties, ensuring that the final agreement will be perfected. If one of the parties refuses to fulfill the obligation to enter into the definitive contract, the other party may resort to the judge to obtain a constitutive judgment that produces the effects of the uncompleted contract. This is the mechanism provided for by Article 2932 c.c., a powerful tool for protecting the performing party.

The crucial issue, often debated in jurisprudence, concerns the moment to consider when assessing the existence of conditions that make the transfer of the asset possible. Is it the moment of the judicial claim or the moment of the judgment's pronouncement? The answer to this question is of vital importance, especially in contexts where the asset subject to the preliminary agreement (as in the case examined by the Court of Cassation, company shares) may undergo significant alterations or even lose its transferability in the time lapse between the filing of the claim and the judge's final decision.

In matters of preliminary agreements, judgments ex Art. 2932 c.c. produce the effects of the definitive contract from their final and unappealable ruling. Therefore, to ascertain the conditions that make the transfer of the asset enforceable, reference must be made to the moment of the pronouncement, not to the moment of the claim. (In this case, the Supreme Court quashed and remanded the lower court's decision, which, in relation to a preliminary sale of company shares in a company that subsequently went bankrupt, had failed to investigate whether, at the time of the pronouncement, the transfer of such shares was still concretely possible despite the company's subsequent state of insolvency).

This maxim from the Supreme Court unequivocally clarifies a fundamental principle: the transfer effect of a judgment ex Art. 2932 c.c. is consolidated only upon its final and unappealable ruling. Even more relevant is the temporal specification: to verify whether the transfer of the asset is actually enforceable, the judge must consider the situation existing at the time of their decision, not at the time the party originally requested performance. This means that, even if the conditions for transfer were perfect at the time of the claim, a subsequent change in circumstances, such as the bankruptcy of the company whose shares were the subject of the sale, must be carefully evaluated.

The Decisive Moment: The Judicial Pronouncement and the Company's Bankruptcy

The specific case that led to Order No. 16203/2025 concerned a preliminary agreement for the sale of company shares in a company that, after the judicial claim was filed, went bankrupt. The Court of Appeal of Genoa, whose decision was quashed and remanded by the Supreme Court, had failed to investigate whether, at the time of the judgment's pronouncement, the transfer of such shares was still concretely possible, despite the company's subsequent state of insolvency. The Court of Cassation, intervening in the dispute between S. and C., highlighted the error of this omission.

This approach by the Court of Cassation is consistent with the constitutive nature of a judgment ex Art. 2932 c.c. It does not merely declare a pre-existing right but creates a new legal reality, substituting for the missing consent of the defaulting party. Therefore, it is logical that its operation must confront the factual and legal reality existing at the moment this reality is created, i.e., at the time of the pronouncement. The implications are significant:

• The judge cannot ignore new and supervening facts that affect the feasibility of the transfer.
• The occurrence of events such as bankruptcy may render the transfer impossible or devoid of utility for the buyer.
• The assessment of enforceability conditions must be current, not frozen at the time of the claim.

The Order also indirectly invokes the principle of good faith and the necessity that the transfer be still useful and functional to the purpose pursued by the parties at the time of entering into the preliminary agreement. A transfer of shares in a bankrupt company, for example, might no longer have any economic or strategic value for the buyer, rendering specific performance a mere formality devoid of substance.

Conclusions: The Importance of Diligence and Currency in Judicial Assessment

The ruling by the Court of Cassation in Order No. 16203/2025 reinforces the need for careful and dynamic assessment by the judge in actions ex Art. 2932 c.c. It is not enough for the obligation to contract to have been valid and possible at the time of the claim; it is essential that the conditions for the transfer of the asset persist and are current at the time of the judicial decision. This principle protects both parties: on the one hand, it prevents a party from being forced to receive an asset that has lost its functionality or value due to subsequent events; on the other hand, it requires the judge to verify the concrete feasibility of the transfer, avoiding purely theoretical or unenforceable rulings.

For those operating in the legal and real estate sectors, Order No. 16203/2025 represents an important reminder: due diligence and attention to supervening circumstances are crucial not only in the pre-contractual phase but also throughout the entire judicial process, up to the final and unappealable ruling. Only in this way can effective protection, aligned with economic and legal reality, be guaranteed.