Sale and Purchase and Simulation: Analysis of Ordinance No. 18347 of 2024

The recent Ordinance No. 18347 of July 4, 2024, by the Court of Cassation offers important clarifications regarding the action for simulation in real estate sale and purchase matters. In particular, the ruling establishes the evidentiary criteria incumbent upon the buyer when a creditor disputes the actual payment of the price. This issue is crucial for understanding the protection of creditors' rights and the validity of sale and purchase agreements.

The Regulatory Context

The ruling under examination is based on key principles of the Italian Civil Code, particularly Article 2697, which establishes the principle of the burden of proof. In the event of an action for simulation brought by a creditor, the buyer must prove the actual payment of the agreed price. The Court has emphasized that the mere declaration contained in the notary deed is not sufficient to satisfy this evidentiary burden.

Sale and Purchase - Action for simulation brought by the creditor of one of the parties - Actual payment of the price - Burden of proof on the buyer - Conditions - Declaration of payment of the price contained in the notary deed - Inopposability to the creditor - Basis. Where the action for simulation, brought by the creditor of one of the parties to a real estate sale and purchase, is based on presumptive elements which, in compliance with art. 2697 of the Civil Code, indicate the fictitious nature of the alienation, the buyer has the burden of proving the actual payment of the price, failing which elements of assessment regarding the apparent nature of the contract may be drawn; however, this evidentiary burden cannot be considered satisfied by the declaration relating to the payment of the price contained in the notary deed, as the creditor who acts in simulation is a third party with respect to the contracting parties.

The Burden of Proof and Implications

The Court clarifies that the burden of proving the actual payment of the price falls on the buyer. This implies that, in case of dispute by a creditor, the buyer must produce concrete and documented evidence of the payment made. Acceptable evidence may include:

• Bank statements demonstrating the transfer of funds;
• Signed payment receipts;
• Documents attesting to the financial transaction.

The ruling therefore highlights how the mere existence of a notary deed cannot be considered sufficient proof, given that the contesting creditor is not a party to the contract and cannot be bound by the declarations made by the contracting parties.

Conclusions

In conclusion, Ordinance No. 18347 of 2024 represents an important step forward in protecting creditors' rights and affirming the need for concrete evidence in cases of simulated sale and purchase. Buyers must be aware of the importance of adequately documenting real estate transactions to avoid future legal risks. The ruling reiterates that the protection of patrimonial rights also involves strict adherence to the evidentiary rules provided by the Civil Code.