Commentary on Judgment No. 17005 of 2024: Omission of Examination of Decisive Facts and its Relevance

The recent order No. 17005 of June 20, 2024, by the Court of Cassation, presided over by Dr. R. M. Di Virgilio and reported by Dr. G. Fortunato, offers an important reflection on the omission of examination of a decisive fact, a topic of great relevance in the Italian legal landscape. In this article, we aim to analyze the principles set out in the judgment, providing useful clarifications for understanding the regulatory and jurisprudential context.

Regulatory Context

Article 360, paragraph 1, no. 5, of the Code of Civil Procedure, as amended by Legislative Decree No. 83 of 2012, introduces a specific defect that can be alleged in an appeal to the Court of Cassation. This defect refers to the omission of examination of a historical fact, whether principal or secondary, which is evident from the case files and has been the subject of discussion between the parties. In this order, the Court reiterates that for an omission of examination defect to be established, the fact in question must be decisive, meaning that if it had been examined, it could have led to a different outcome of the dispute.

Appeal to the Court of Cassation - Ground under art. 360, no. 5, c.p.c. as amended by d.l. no. 83 of 2012 - Omission of examination defect - Relevance - Conditions. Article 360, paragraph 1, no. 5, c.p.c., as amended by art. 54 of d.l. no. 83 of 2012, converted into l. no. 134 of 2012, introduces a specific defect into the legal system that can be alleged before the Court of Cassation, relating to the omission of examination of a historical fact, principal or secondary, whose existence is evident from the text of the judgment or from the procedural documents, which has been the subject of discussion between the parties and is decisive (i.e., if examined, it would have led to a different outcome of the dispute); therefore, the omission of examination of evidentiary elements does not, in itself, constitute the defect of omission of examination of a decisive fact if the historical fact, relevant to the case, has been taken into consideration by the judge, even if the judgment has not accounted for all the evidentiary findings.

Analysis of the Judgment

In the judgment under review, the Court of Cassation rejected the appeal filed by B. against Z., highlighting that the omission of examination of evidentiary elements does not automatically constitute a defect of omission of examination of a decisive fact. This aspect is fundamental, as it clarifies that even if the judge has not analyzed every single piece of evidence, this does not necessarily imply a procedural error if the relevant facts have been considered.

• Relevance of the fact: it must be decisive for the outcome of the case.
• Consideration by the judge: the fact must have been subject to evaluation, even if not exhaustively.
• Impact on the decision: the failure to examine must have played a determining role in deciding the dispute.

Conclusions

Judgment No. 17005 of 2024 represents an important milestone in Italian jurisprudence regarding the defect of omission of examination. It clarifies that not all flaws in the evaluation of evidence lead to the acceptance of an appeal. The Court, by reiterating the importance of the relevance and consideration of historical facts, provides a useful interpretative tool for lawyers and judges. It is therefore essential for the parties involved to present facts and evidence clearly and precisely, as their relevance can significantly influence the outcome of the dispute.