The undue payment

Undue payment and performance of an undue
service. Undue debt is divided into objective and subjective.
Objective debt occurs when the party performing a service on the basis of a
non-existent or ineffective title (2033 of the Italian Civil Code). Subjective
debt occurs when the payer executes a debt of another in the erroneous
belief that he is the debtor (2036 cc).
Anyone who receives undue payment is
obliged to return it. Essential requirement for
the configurability of a case of objective undue debt and the lack
of a justification for the asset shift. Where
art. 2033 of the Italian Civil Code refers to the undue payment, it is included both
the non-existence of the payment title, or its subsequent lapse
with retroactive effects, for example, termination, rescission,
fulfillment of the termination condition or cancellation. Elements of the
case of objective undue debt are identified in the undue payment, that is
1) payment and 2) lack of title.
Unlike
the subjective undue, the error of the
fulfillment is not required. In the face of the undue performance,
the accipiens is obliged to return what has been received, in addition to the fruits and
interest with the corresponding right for the solvens to take legal action
for the eventual repetition of what has been paid. The relative
repetition action is personal in nature and can only be exercised by the
person to whom the payment is attributable, it expires in ten years
pursuant to art. 2946 cc. As a prerequisite for the right to
repetition, the payment must be proven by the person who asserts
this right, ie the solvens must demonstrate in court that the
payment made was not due due to the original or
supervening non-existence of the supporting document.
Undue performance concerns
in general all the hypotheses of lack of the title, that is of lack
of the relationship or of the transaction in execution of which the service is
made. The title may be missing in origin or it may fail after
the performance.
We thus have the following cases:
a) non-existence of the
source of the debt, the performance does not refer to any
title;
b) termination of the obligatory relationship, ie the
debtor pays a debt already paid;
c) non-legitimacy of the
recipient of the service, so-called subjective undue ex
latere accipientis (the debtor pays a debt to a third person
believing him to be authorized to collect it), precisely the debt exists but
the debtor fulfills the service towards those who are not creditor
(creditor apparent). The apparent legitimacy is required to return the
service to the true creditor according to the rules of repayment of the undue
payment (1189 cc);
d) nullity, cancellation and termination of
the negotiation title. Holder of the right of repetition and the complying, the
one to whom the payment is attributed.
With reference to the burden of
proof that weighs on the plaintiff in the objective undue judgment,
the Supreme Court intervened with sentence N. 19902/2015, which
stated … “in the objective undue judgment the plaintiff can invoke
both the invalidity and the non-existence of a document to justify
the payment. In the first case, he has the burden of proving that the
payment title is invalid; in the second case it only has the burden of attaching
the non-existence of any supporting document
of the payment. The subjective undue ex latere solventis occurs when
the credit exists, but the fulfillment comes from a person not
obliged to it, in this case, whoever has paid the debt of others has the right
to repayment of the undue when:
– has paid on the basis to an
excusable error;
– provided that the creditor has not deprived himself in good
faith of the security or guarantees of the credit. The creditor is obliged to
return the fruits and interest from the day of payment if he was in
bad faith or from the day of the claim if in good faith.
***
Civil Cassation section III – 06/10/2015, n. 19902
……
COURSE OF THE PROCESS
In 2003 BC agreed
before the Court of Padua MM, alleging that he was LG’s heir, and
that the latter had paid sine titulo to MM the sum of L.
300,000,000 by means of a bank check.
He therefore asked
the defendant to be sentenced to return this undue payment,
limited to his inheritance share (equal to 50%).
2.
MM is agreed and I deny that the payment received by LG was sine
titulo. I explain that that sum was owed by LG to his mother as a price for the
sale of furniture, and was paid with a
check which, at the behest of the creditor, was drawn by the debtor
LG on the order of MM.
2. The Court of Padua with sentence 6.4.2007 n. 881 I reject the request.
The sentence was appealed by BC.
The Court of Appeal of Venice with sentence 12.30.2010 n. 2559 accepted the encumbrance.
On the basis of its decision, the Court of Appeal
stated the following reasoning: -) the plaintiff attached that the payment to MM was essentially a donation, void due to lack of form;
-)
being it is undisputed that a written document was missing, it was up to the
defendant to prove a valid causa solvendi, other than donation;
-) the defendant had not discharged this charge, so the request for undue debt had to be accepted.
3. The appeal sentence was challenged by MM on the basis of two reasons.
BC resisted with a counter-appeal and proposed cross-appeal, illustrated by memoir.
GROUNDS FOR THE DECISION
The first ground of appeal.
1.1.
With the first ground of appeal, the appellant argues that the judgment
under appeal would have incurred a defect in reasoning, pursuant to art.
360 cpc, n. 5.
He complains that the Court of Appeal would have
based its decision on an erroneous assumption: that is, that the plaintiff,
in asking for the restitution of the sums paid by LG to MM, alleged that he was
ignorant of the cause of the payment.
On this erroneous
consideration in fact, continues the appellant, the Court of Appeal
would have founded the in ture assertion according to which the plaintiff in
the undue judgment, when he ignores the cause of the payment, has the only
burden of attaching a hypothetical justifying title and proving
it unsuitable (for example, attaching a donation and proving its lack
in written form).
1.2. The reason is unfounded, because it does not grasp the real ratio decidendi.
The
Court of Appeal in fact based its decision on the assumption
that the plaintiffs had invoked in court “the nullity of any
act of liberality” carried out by their assignor against
MM (page 7, paragraph 2, of the sentence contested).
There
proposition “probably ignoring its real cause” (scilicet,
of payment) and a mere incidental one, devoid of any weight in
the logic of the decision.
Therefore, there is no defect in the
reasoning because there has been no false perception of the facts and
deductions in law put forward by the plaintiff.
2. The second ground of appeal.
2.1.
With the second ground of appeal, the appellant argues that the
contested sentence is affected by both a violation of the law,
pursuant to art. 360 cpc, n. 3, (articles 2033 and
2697 of the civil code are assumed to be violated); or from a lack of motivation, pursuant to art. 360
cpc, n. 5.
In the illustration of the reason, the applicant develops the following thesis.
According to
the precedent of legitimacy invoked by the Court of Appeal
(Cass. 1170/99), if the one who asks for the repayment of the undue payment ignores
the cause of the bestowal, he can limit himself to indicating one: if he proves that that
cause does not recur, it is up to the agreed to prove what the real
cause of the payment was.
In the present case, however,
the prerequisite for the operation of that rule was lacking in the first place:
that is, that the plaintiff ignored the cause of the payment. The heir of the solvens
in fact had attached that the payment was made by way of a loan or
donation (arguing that both of the aforementioned were invalid
contracts).
Furthermore – continues the appellant – the principle
affirmed by Cass. 1170/99 was isolated and not acceptable, because
according to the prevailing orientation of this Court, whoever
initiates an undue action has the burden of proving the absence of a iuxta causa
obligationis in support of the payment.
Consequently –
concludes MM – whoever asks for the repayment of the debt must prove:
(a) the existence of a legal title that is abstractly suitable to
justify the payment; (b) its invalidity.
In the present case,
BC had not provided such proof, and therefore
the Court of Appeal erroneously granted his request.
2.2. In the part
in which he complains of the defect in motivation, the reason is
inadmissible, because the entire complaint envisages a typical error in
iudicando.
2.3. In the part in which it proposes a violation of articles 2033 and 2697 cc, the reason is unfounded.
The
undue action is granted to the solvens both when it has made
a payment on the basis of a title that is invalid ab initio or that has become
invalid thereafter; both when it has made a payment without
any title, as in the case of objective undue debt.
Therefore, whoever asks for the
repetition of the undue payment, as the basis of their request, can
envisage both the invalidity and the non-existence of a iuxta
causa obligationis.
If in the plaintiff’s prospectus it is assumed that
the undue payment took place in the total absence of any supporting document
, the plaintiff will have no obligation to attach and
prove that a payment formally exists, but is invalid. In
this case, the plaintiff’s sole burden is to attach the non-existence
of a just title to the obligation. It will then be the defendant, in accordance
with the so-called principle of proximity to the evidence, who will have to prove that the
payment was supported by a just cause.
The only limit that
the plaintiff encounters in the prospect of the facts underlying
the request for undue debt is to remain silent on the existence
or on the
If, in fact,
the plaintiff in the undue judgment even declares that he is ignorant of whether
the payment for which he is requesting restitution is supported by a title,
the summons should be declared null and void pursuant to art. 164 cpc, due to the
lack of disclosure of the petendi case.
2.4. In the present case
, according to the same prospect as the appellant (see
the appeal, p. 9), BC had deduced with the writ that the
payment from LG to MM had taken place either as a loan, or as a
donation: in the first case it had to be returned for
contractual obligation, in the second case for nullity of the donation stipulated in
oral form.
This prospect in fact required the defendant:
-)
or to prove the fulfillment of the loan agreement, according to the
rule of division of the burden of proof dictated by art. 1218 of the Italian Civil Code;
-) or to prove that the donation was stipulated by public deed;
-) or to prove that the sum of 300 million lire had been paid to him for another and valid documentary proof.
As MM did not provide any such evidence, the Court of Appeal correctly accepted the plaintiff’s request.
2.5. The conclusion just presented has been repeatedly affirmed by this Court.
Has already established Sect. 3, Judgment n. 1734 of 25/01/2011, Rv.
616329,
that once an undue repayment request has been made,
the plaintiff has the burden of proving the non-existence of a just cause of the
patrimonial attributions carried out in favor of the defendant, but only with
reference to the specific relationships between them and deduced in court,
constituting diabolical proof to require the plaintiff to demonstrate
the non-existence of any and all cause of bestowal between solvens and
accipiens (in the same sense Section 3, Sentence no. 15667 of 15/07/2011,
Rv. 619229).
And previously, in the same order of ideas,
Sect. L, Sentence n. 6138 of 03/20/2006, Rv. 588046, had established
that, in the wrongful judgment, and the one who denies its existence
must prove the existence of the conditions that make it justified
the payment for which reimbursement is requested.
2.6. It should only be
added that the precedent of this Court constituted by Sect. 3,
Judgment n. 1170 of 11/02/1999, Rv. 523147, invoked by the Court
of Appeal, is not at all in contrast with the other precedents just
indicated.
This sentence, in fact, only specified that the burden
of proof weighing on the plaintiff in the undue judgment must be absolved in
relation to the thema decidendum, ie the type of defect that would make the
payment sine causa.
This means that if the plaintiff assumes that the
payment for which he is requesting restitution was made on the basis of a
null title, he must prove such nullity.
When instead,
the plaintiff assumes that the payment for which he is requesting restitution was
made sine titulo, he will only have to attach such
non-existence of the title, and it will be the responsibility of the defendant to prove, on the
contrary, the existence of a juxta causa obligationis.
Therefore, the reading that the appellant gives of the precedent in question is
not correct
(Cass. 1170/99, cit.), Or that according to this decision the plaintiff
in the undue judgment can declare to “ignore” the
justifying title of the payment .
The verb “to ignore” in fact, in
the motivation of that sentence, was used to indicate the hypothesis in
which the plaintiff formulates two alternative or subordinate questions, ignoring
which one is founded: in fact in that judgment, just as
in the present, the plaintiff had proposed primarily a donation
void due to lack of form, and in the alternative a payment sine causa.
Therefore
Cass. 1170/99 did not at all affirm what the appellant
intends to make her say, namely that it is possible to introduce a judgment of
repetition of wrongdoing in the capacity of plaintiff, without declaring hours rotundo if the
payment has been made sine titulo, or in execution of a title
invalid or no longer valid.
2.7. The appeal must therefore be rejected in application of the following principle of law:
In
the judgment of objective undue the plaintiff can invoke both the invalidity,
or the non-existence of a proof of payment. In the first
case, it has the burden of proving that the payment title is invalid;
in the second case it has the sole burden of attaching (but not proving,
since it is impossible) the non-existence of any documentary
proof of payment, and it will be the responsibility of the defendant to prove that the payment
was supported by just cause.
In both cases,
however, it must be ruled out that the plaintiff can merely declare that he is
ignorant of whether the payment has or does not have a
justifying title, since in this case the summons would be
null for lack of the causa petendi. .
3. The cross appeal.
3.1.
With the sole reason for the cross appeal, BC complains about the defect
in the grounds of the contested sentence, in the part in which it
fully compensated the costs of the double level of judgment.
3.2. The reason is inadmissible.
It is
in fact common ground, in the jurisprudence of this Court, that in the system
for the regulation of procedural costs prior to the replacement
of art. 92 cpc, paragraph 2, by the law of 28 December 2005, n.
263, art. 2, (applicable to proceedings initiated after 1 March
2006, while the present judgment began in 2003), that the choice of
compensating the expenses can be questioned on legitimacy only in cases
violation of the law, which would occur in the event that,
contrary to the prohibition established by art. 91 cpc, the same
were charged to the totally victorious party. The
assessment of the appropriateness of total or partial compensation
falls, on the other hand, within the discretionary powers of the trial judge both
in the hypothesis of mutual unsuccessfulness and in that (recurrent in the
case in point) of the existence of just reasons, and the judge
can compensate the costs procedural for just reasons without the obligation to
specify them, given that the existence of reasons justifying the
compensation must be related to and integrated with the
motivation of the sentence and with all the procedural events, given
the inseparable connection between the development of the case and the ruling
on the expenses themselves, therefore
the principle established by art. 111
of the Constitution, paragraph 6, (thus, ex multis, Section 1, Sentence no. 24495 of
11/17/2006, Rv. 595203).
4. Expenses.
Mutual unsuccessfulness constitutes just reason for the compensation for half of the expenses of the present grade of judgment.
PQM
the Court of Cassation, having regard to art. 380 cpc:
-) rejects the appeal;
-)
sentencing MM to reimburse half of the expenses in favor of BC
of the present level of judgment, which are paid (net of the
aforementioned reduction) in the sum of Euro 4,500, of which 800 for out-of-pocket expenses
, plus VAT, legal fund and lump sum expenses DM 10 March
2014, n. 55, pursuant to art. 2, paragraph 2.
So decided in Rome, in the Council Chamber of the Third Civil Section of the Court of Cassation, on 4 June 2015.
Filed in the Chancellery on 6 October 2015
***
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