Analysis of Order No. 18545 of 2024: Specific Performance of Preliminary Contract

The recent Order No. 18545 of July 8, 2024, issued by the Court of Cassation, offers important clarifications regarding the specific performance of the obligation to conclude a preliminary contract. In this ruling, the Court emphasizes the need for substantial identity of the asset subject to transfer between the preliminary contract and the final contract.

Context of the Ruling

The case in question concerned a dispute between the parties, T. and S., relating to a preliminary sale agreement. The central issue was whether it was possible, in case of default, to substitute the asset originally envisaged in the preliminary contract with another asset. The Court ruled that the specific performance of the obligation to conclude the contract presupposes substantial identity of the asset. This means that, in forced execution proceedings, the judge cannot substitute the original asset with a different one, even if the parties request it.

The Ruling's Maxim

PRELIMINARY AGREEMENT (DEFINITION, CHARACTERISTICS, DISTINCTION) - SPECIFIC PERFORMANCE OF THE OBLIGATION TO CONCLUDE THE CONTRACT Preliminary contract - Specific performance of the obligation to conclude the contract - Prerequisites - Substantial identity of the asset subject to transfer provided for in the preliminary contract and in the final contract - Consequences - Case law. The substantial identity of the asset subject to transfer constitutes an indispensable element of connection between the preliminary contract and the final contract, with the consequence that, in terms of specific performance of the obligation to conclude a contract, pursuant to art. 2932 of the Italian Civil Code, the judgment that takes the place of the unconcluded final contract - necessarily having to reproduce, in the form of a judicial measure, the same balance of interests assumed by the parties as the content of the preliminary contract, without the possibility of introducing modifications - cannot concern an apartment or more apartments chosen by the prospective buyer different from those contemplated in the preliminary agreement as the object of the future transfer and located on a different floor of the building to be erected.

Implications and Reflections

The ruling in question has several implications for legal professionals and citizens. It is crucial to understand that the preliminary contract is not a mere formal act, but an agreement that establishes well-defined rights and duties. The Court, referring to Article 2932 of the Italian Civil Code, clarifies that the substantial identity of the asset is an essential prerequisite for specific performance. This implies that, in case of default, any judgment must remain faithful to the initial object of the contract, avoiding modifications that could alter the original balance of the parties' interests.

• Importance of clarity in the preliminary contract.
• Need for adequate legal advice for contract drafting.
• Risks associated with modifying contractual terms without consent.