Annulment of Separation Agreement: Moral Coercion as a Defect of Consent

The recent order of the Court of Cassation (Cass. civ., Sez. I, Ord., n. 4440 of 20/02/2024) has raised significant questions regarding the annulment of separation agreements due to a defect of consent, particularly when referring to moral coercion. In this article, we will analyze the details of this ruling, focusing on the fundamental legal principles and practical implications for the parties involved.

The Case of A.A. v. B.B.

The case at hand concerns A.A., who sought the annulment of the consensual separation agreement signed in 2011, claiming to have done so under threat and psychological coercion. A.A. highlighted a context of moral coercion and intimidation by the family of his wife, B.B., which allegedly affected his freedom of self-determination.

Moral coercion, as an invalidating defect of consent, requires the threat to be of such a nature as to impress a sensible person and cause fear of an unjust and considerable harm.

Relevant Legal Principles

The Court of Cassation reiterated several fundamental principles regarding the annulment of contracts due to defects of will, in particular:

• It is necessary that the coercion is aimed at extorting the consent of the passive subject.
• The threat must be of a nature that affects the subject's freedom of self-determination.
• The socio-cultural context and the position of the parties must be considered in the assessment of moral coercion.

In the specific case, the Court found that the Court of Appeal of Bari had not adequately considered the testimonial evidence and the circumstances that could have justified the annulment of the agreement. It was therefore decided to quash the judgment and refer the case back for a new evaluation.

Conclusions

This ruling by the Court of Cassation represents an important opportunity to clarify the role of moral coercion in separation agreements. It highlights the need for a thorough examination of the evidence and circumstances that can influence the will of the parties. The decision to refer the case back to the Court of Appeal of Bari in a different composition offers a new chance to review the evidence and ensure a just application of the law.