The assignability of claims arising from a void contract: the analysis of the Court of Cassation in Order no. 29691/2025

The nullity of a contractual agreement often raises many practical doubts, not only for legal practitioners but also for citizens who find themselves managing the economic consequences of an invalid act. It is often thought that the nullity of a contract nullifies every effect and blocks any subsequent operation until a final court judgment is reached. But what happens if, following a void contract, a right to the restitution of sums already paid arises? Can this claim be assigned to third parties even before the court formally declares the contract void? The Court of Cassation answered this complex question with Order no. 29691 of November 10, 2025, clearly defining the boundaries of the assignability of restitutionary claims.

The case and the decision of the Supreme Court

The matter arose from a dispute between F. B. and B. L. regarding the validity of the assignment of a claim. Specifically, two parents had assigned to their son, as a gift and as an anticipation of the future inheritance, the restitutionary claim deriving from a void real estate purchase agreement. The Court of Appeal of Salerno had confirmed the validity of such assignment, a decision subsequently challenged before the Supreme Court. The judges of legitimacy rejected the appeal, confirming the second-instance decision and clarifying that a claim arising from objective undue payment cannot be considered a future claim or one contingent upon the judicial ascertainment of nullity.

The principle of law of the Court of Cassation and its practical significance

To fully understand the scope of this important ruling, it is useful to analyze the principle of law expressed by the Court:

The restitutionary claim arising from a void contract may be assigned, even as a gift, as it is existing, certain, liquidated, and enforceable from the moment of the payment made sine causa adquirendi, with any dispute regarding the invalidity of the underlying contract being irrelevant.

This ruling is based on a cornerstone principle of our civil legal system related to the recovery of undue payment (art. 2033 of the Italian Civil Code). When a contract is void pursuant to art. 1418 of the Italian Civil Code, it produces no effects from the outset. Consequently, any sum paid in execution of that agreement constitutes a payment made without cause (sine causa adquirendi). The right to recover those sums arises immediately at the very moment the payment is made, and not when the judge ascertains the nullity with a judgment, which is merely declaratory in nature.

The key points highlighted by the Court are as follows:

• Immediacy of the claim: The restitutionary claim exists and is enforceable from the moment of the undue payment; there is no need to wait for a judgment of nullity.
• Irrelevance of the dispute: Any judicial challenge regarding the nullity of the contract does not affect the assignability of the claim.
• Free transferability: Pursuant to art. 1260 of the Italian Civil Code, the creditor may transfer their claim for consideration or gratuitously, including as a gift or inheritance anticipation, without the need for the debtor's consent.

Conclusions: implications for citizens and professionals

The ruling of the Court of Cassation with Order no. 29691/2025 offers important protection for the circulation of claims and simplifies the management of situations involving contractual pathology. Knowing that a restitutionary claim deriving from a void act can be immediately assigned – for example, within a family as an inheritance advance, or to third parties to settle other outstanding debts – ensures greater financial flexibility. For legal professionals, this judgment represents a solid point of reference for providing the best advice to clients in assignment operations and estate planning.