Analysis of Judgment No. 16979 of 2024: Obligation and Indemnity in Civil Law

The recent judgment No. 16979 of June 20, 2024, by the Court of Cassation offers important clarifications on the distinction between a claim for damages for breach of an obligation to act and a claim for indemnity pursuant to art. 1381 of the Italian Civil Code. This decision has generated interest due to its relevance in the field of obligations and contracts, emphasizing the need for correct formulation of claims in court.

Context of the Judgment

In the case under review, the appellant had originally filed a claim for damages for breach of contract, but subsequently sought to broaden their legal position by requesting indemnity. The Court deemed this new claim inadmissible, as it related to the same facts as the original one. This aspect is crucial for understanding how Italian jurisprudence handles claims in litigation.

Distinction Between Obligations to "Do" and to "Give"

The judgment clarifies that, in the context of art. 1381 of the Italian Civil Code, there are two types of obligations involved. On one hand, there is the obligation to "do" (facere), which implies a duty to endeavour to ensure that a third party fulfills an obligation. On the other hand, there is the obligation to "give" (dare), which is triggered if, despite efforts, the third party refuses to perform. This distinction is fundamental for determining the admissibility of claims made in court.

• Obligation to "do": to endeavour to ensure the third party performs the promised action.
• Obligation to "give": to pay indemnity if the third party fails to perform.

OF THE OBLIGATION OR ACT OF A THIRD PARTY Promise of the obligation or act of a third party - Original claim for damages for breach of an obligation to do - Claim for indemnity pursuant to art. 1381 of the Italian Civil Code filed at the conclusion of proceedings - Admissibility - Exclusion - Basis - Factual situation. In matters concerning the promise of the obligation or act of a third party, a claim for indemnity pursuant to art. 1381 of the Italian Civil Code filed at the conclusion of proceedings is inadmissible as new, if a claim for damages for breach of an obligation to do has been originally filed in relation to the same facts; in the hypothesis provided for by the aforementioned art. 1381 of the Italian Civil Code, the cause of action is indeed different, given that the promisor assumes a first obligation to "do", consisting in endeavouring to ensure that the third party behaves as promised, so as to satisfy the promisee's interest, and a second obligation to "give", i.e., to pay indemnity if, despite having endeavoured, the third party refuses to commit. (In this case, the Supreme Court confirmed the judgment that had declared inadmissible the claim for indemnity filed by the buyer at auction of a property, which, after adjudication, was occupied despite the expiry of the term set for its release, as the appellant had originally sued only for damages for breach of contract).

Conclusions

In conclusion, judgment No. 16979 of 2024 highlights the importance of correctly framing legal claims in litigation. The distinction between obligations to "do" and to "give" is crucial to avoid the inadmissibility of claims and to ensure that the rights of the parties are adequately protected. Legal professionals must therefore pay attention to these nuances to avoid procedural errors that could compromise their claims for damages or indemnity.