Discharge in Notarial Deed and Extrajudicial Confession: Cassation 15097/2025 Clarifies the Limits of Judicial Assessment

In the complex landscape of civil law, the issue of the evidentiary value of acts and declarations is of crucial importance. The recent judgment no. 15097 of June 5, 2025, by the Court of Cassation (Rv. 675678-01), presided over by Dr. D. V. R. M. and with Dr. T. C. as rapporteur and author, offers a fundamental clarification regarding the conflict between a payment discharge issued in a notarial deed and extrajudicial statements made to third parties. This ruling, which saw D. and L. in opposition, quashed and remanded a previous decision by the Court of Appeal of Naples, highlighting the need for careful assessment by the trial judge, without automatic interpretations.

The Discharge in the Notarial Deed: A "Privileged" Value?

A notarial deed is a public act, and as such, it enjoys privileged faith, attesting to the veracity of what the notary has seen or attested to have occurred in their presence, such as the declaration of payment received. Article 1199 of the Civil Code establishes that the creditor who receives payment must, at their request and expense, issue a discharge. This discharge, if contained in a public act, assumes particular evidentiary strength. However, what happens when such a declaration, even if included in a solemn act, is contradicted by subsequent statements made by the person who issued it, perhaps in different contexts?

The Supreme Court, in the judgment under review, was faced with precisely this delicate issue. The Court of Appeal of Naples had considered that the statements regarding non-payment made by the buyer to the Public Prosecutor constituted an extrajudicial confession, despite the presence of a payment discharge in the deed of sale. This approach, however, did not pass the Cassation's scrutiny.

Extrajudicial Confession and Its Limits in Assessment

A confession is a declaration by one party of the truth of facts unfavorable to them and favorable to the other party (Art. 2730 c.c.). It can be judicial or extrajudicial. The latter, governed by Art. 2735 c.c., is made outside of legal proceedings. If made to the party or their representative, it has the same value as a judicial confession. If made to a third party, it is freely assessed by the judge. And it is precisely on this point that the Cassation focused its attention.

The confessional scope of statements made to a third party, in contrast to the discharge issued in the notarial deed, is subject to the free assessment of the trial judge. (In this case, the S.C. quashed the lower court's judgment which had held that, in the face of the discharge issued by the seller in the deed of sale, the statements regarding non-payment made by the buyer to the Public Prosecutor constituted an extrajudicial confession).

As is clearly evident from the summary, the Cassation censured the automatic manner in which the Court of Appeal had qualified the statements made to the Public Prosecutor as an extrajudicial confession. The crucial point is that such statements, having been made to a third party (the P.M. of the E. R. M.), cannot be automatically considered a confession with the value of legal proof, but must be subject to a free and in-depth assessment by the trial judge. This means that the judge cannot simply note the discrepancy but must analyze the context, spontaneity, awareness, and reliability of the statements, comparing them with the entire body of evidence.

The Role of the Trial Judge: A Necessary Balancing Act

Judgment no. 15097 of 2025 reiterates a fundamental principle of our legal system: the burden of proof (Art. 2697 c.c.) and the judge's free assessment in the presence of non-legal evidence. In the presence of a notarial discharge, which attests to payment, the burden of proof to the contrary must be rigorous. However, the Cassation clarifies that statements made to a third party cannot, on their own, undermine the evidentiary strength of the discharge without critical analysis. The judge must therefore weigh all available elements, avoiding the attribution of absolute value to statements that, while contradictory, do not have the same evidentiary force as a public act.

In this context, the trial judge will have to evaluate:

• The nature and context of the statements made to third parties.
• Their compatibility with other evidence acquired in the proceedings.
• The possible presence of defects of will or circumstances that could invalidate the spontaneity or truthfulness of the statements.
• The possibility that the discharge itself may be contested for simulation or error, but always through appropriate means of proof (e.g., Art. 2726 c.c., which limits testimonial evidence for additional or contrary agreements to the content of a document).

Conclusions: A Call for Judicial Prudence

The Cassation judgment no. 15097 of 2025 represents an important warning to trial judges and a reference point for legal practitioners. It underscores the need for a thorough and non-automatic analysis of evidence, especially when comparing acts with privileged faith, such as a discharge in a notarial deed, with extrajudicial statements made to third parties. The principle of free assessment must not translate into a superficial evaluation, but into a careful weighing of all elements, in order to ensure a just and equitable decision. This ruling strengthens confidence in the stability of public acts, while admitting the possibility of contrary proof, but always in compliance with the principles governing the formation and assessment of evidence in our legal system.