Supply contract, contractor company, necessary subcontractor, repayment of sums paid as a penalty, Court of Cassation, I Civ. Sec., Judgment n. 2048 of 26/01/2018

Essential lines of the arguments of the Supreme Court of Cassation

on appeal 21680/2012 proposed by:

… .. S.p.a. – Joint-stock company with sole shareholder, in the person of the pro tempore legal representative,

versus

-recurrent –

Ministry of …., in the person of the Minister pro tempore,

-control current –

as well as against

… … – Company … ..S.p.a., already …… S.p.a., in person of the legal representative pro tempore,

-current and incidental appellant – against

… … S.p.a., Ministry of …;

– intimates –

against sentence no. 2930/2011 of the CORTE D’APPELLO of ROME, filed on 04/07/2011; heard the report of the case in the council chamber of 09/14/2017.

CAUSE FACTS

1. With a ruling filed on July 4, 2011, the Court of Appeal of Rome rejected the appeal filed by …. s.p.a. against the Ministry of …, in relation to the decision of first instance, with which the request to obtain the restitution of the sums paid as a penalty was rejected, as part of a contract for the supply of a series of materials and services, depending on the executive delays with respect to the contractually established deadlines.

2. The Territorial Court noted: a) that exactly the Court, in accordance with the general rules on the distribution of the burden of proof, had noted the failure to demonstrate that the delays attributed by the actress (originally the … .spa , which took over … .. spa, as the assignee of a business unit) to the subcontractor company … were dependent, at least predominantly, on the legislative provisions (lastly the decree of 20 October 1992, No. 414 and 19 December 1992, No. 487), which ordered the suspension of the payment of the debts contracted by the subsidiaries of … prior to July 18, 1992; b) that, in fact, the subcontractor had not in any case suspended its business activity, so as to have in any case completed the supplies, albeit late; c) that, moreover, the purpose of the regulatory measures was precisely to allow the reorganization of the companies belonging to the … and, therefore, was not consistent with the possibility of concluding new contracts and paying the new supplies; d) that, in any case, from the documentation produced by the same … s.p.a. it emerged that many of the subcontractors had not expressed any willingness to interrupt relations with the company …, rather requiring a clarification of the modalities of payments in relation to the new supplies; e) that, ultimately, as society could well … look for other suppliers, the central question was the lack of resources for the continuation of production, which was the cause and not the effect of the regulatory measures invoked dall’appaltatrice; f) that these considerations were also valid with reference to the alleged difficulties encountered with the banks; g) that the art. 6, paragraph 5 of the legislative decree n. 487 of 1992 cit., Provided for a waiver in favor of companies controlled by … in relation to the blocking of past debts, and not also in favor of different subjects; h) that, moreover, the Ministry of the Treasury had granted a specific exemption from the application of the rules for suspending payments; i) that even the appellant company had not been clarified which obstacles prevented direct negotiations between suppliers and … that, since 19 December 1992, had become the company’s company tenant … and that it could also guarantee payments that the latter had shown that it was unable to guarantee; I) that the request, formulated in a subordinate way by … s.p.a., of reduction of the amount of the penalties applied by the Ministry of the … was inadmissible, in how much proposed for the first time with the act of appeal; m) that similar considerations were imposed with regard to the request for testimonial evidence, articulated for the first time with the appeal deed.

The Court of Appeal also confirmed the passive legitimacy of … ..s.p.a. (already … .s.p.a.), against which he had arranged, following the appeal proposed by … s.p.a., the integration of the adversarial. It found that, in the event of the assignment of the disputed ruling, the transferor, even if the purchaser intervenes in court, retains the status of party, unless he is expelled with the consent of the other parties, in the missing species.

3. Against this ruling the …. s.p.a. has appealed to cassation entrusted to a single, complex reason, which resist with a counter-appeal the Ministry of … and the … ..s.p.a. The latter proposed an incidental appeal, entrusted to a single reason. An appearance was filed of the … ..s.ps., incorporating company of … .s.p.a. The plant … … … did not do any defensive work.

The ….. S.P.A.. has filed a memorandum pursuant to art. 380- bis.1, cod. proc. civ., with which, in addition to insisting on its own grievances, underlines the delay in filing the counter-reactions by the Ministry of …. and of … ..s.p.a.

REASONS FOR THE DECISION

1. It should first be examined, for logical reasons, the exception of late filing of the defense of the Ministry and of … .s.p.a. According to the orientation of this Court, for the purpose of verifying the timely notification of the counter-appeal in cassation, to be performed pursuant to art. 370 cod. prqc. civ., in the twenty days following the filing of the appeal, which, in turn and pursuant to art. 369 of the code of procedure, must take place within twenty days of its last notification, the final moment of the latter is identified with the receipt of the deed by the addressee (Court of December 3, 2015, No. 24639).

In this case, the last notification of the appeal reached the ….. spa, in its own attorney, on 2 October 2012, with the consequence that from that moment the total forty days have elapsed within which the counter-appeal should have been notified (the twenty days foreseen by Article 370, first paragraph, of the Civil Proceedings Code, start from the expiration of the twenty-day deadline for filing the appeal at the Registry), also intended for contain any incidental appeal, pursuant to art. 371 cod. proc. civ. Now, as regards the Ministry, the counter-appeal is presented for notification on December 20, 2012, well beyond the forty-day period mentioned above. On the contrary, the counter-appeal of … .s.p.a. it is sent by post, in the context of the notification procedure governed by the I. 21st January 1994, n. 53, dated 12 November 2012, ie respecting the indicated deadline, taking into account the fact that on 11 November 2012 it fell on Sunday. These considerations prompt the lodging of the defense. There are no profiles of inadmissibility of the cross-appeal.

2. The appellant company complains, pursuant to art. 360, first paragraph, n. 3, cod. proc. civ., violation or false application of art. 6, paragraph 5, d.l. n. 487 of 1992, of the articles 1218, 1375 cod. civ. and of the articles 115, 116 and 345 cod. proc. civ .; as well as, pursuant to art. 360, first paragraph, n. 5 cod. proc. civ., omitted, insufficient or contradictory reasons for a controversial and decisive fact for the judgment. In particular, it points out: a) the exemption from the disadvantageous consequences envisaged by the aforementioned art. 6, paragraph 5 of the legislative decree n. 487 of 1992, depending on the blocking of payments arranged in favor of the companies controlled by … it had a decisive significance in the dispute in question, since, contrary to what was considered by the territorial court, the company …. he was not a third party to the contract between the Ministry and the contracting company, but a necessary subcontractor, whose participation in the transaction was authorized by the Ministry of …; b) that, moreover, this Ministry expressed itself in the same terms, with the note of 28 July 1993, which had justifiably induced the liquidator commissioner of … – and, consequently, the subsidiaries of the institution and the same contracting company – to trust in the application of the aforementioned art. 6, paragraph 5; c) that, therefore, having neglected such documents involved, in addition to the alleged motivational defect, the violation of Articles 1375 and 1218 c.c. and of the articles 115 and 116 cod. proc. civ .; d) that an independent violation of the articles 115 and 116 cod. proc. civ. it was evident in the fact that the judgment under appeal identified the financial difficulties of … s.p.a. the cause of the deterioration in relations with its suppliers, as the latter company was one of the group’s solid assets, having closed the balance sheets for the financial years of 1989 and 1990; e) that the documents produced, moreover, attested the determination of suppliers to immediately suspend deliveries of materials, precisely in order to achieve the payment of past receivables, thereby altering the normal production cycle; f) that the arbitrary choice of credit institutions to use remittances in favor of … s.p.a. in order to settle for compensation the debts from which the latter was burdened with the former, it had taken away other resources to cover the debts not involved in the blocking of payments; g) that, in any case, the fact that the materials to be assembled had not been delivered by the suppliers to the … s.p.a. h) that the first exemption from the block of payments had been communicated to the … s.p.a. after the period of its operation, while the second had a very limited period; i) that the company’s rent by … – to be dated back to March 25, 1993 – was subsequent to communications from suppliers of … s.p.a. to block deliveries, with the aforementioned block of the production cycle, to be assessed also in relation to the company’s concrete production capacity; I) that, in any case, the … s.p.a. it was, as mentioned, a necessary subcontractor, with the consequence that it could not be replaced by another company, unless prior to ministerial authorization; m) that, in considering the joint testimony to be inadmissible, the Court of Appeal had not made any assessment as to its indispensability for the purposes of the decision.

3. The complaint is, as a whole, groundless.

As regards the reported violations of the law, it is noted, first of all, that the art. 6, paragraph 5, of the legislative decree n. 487 of 1992, converted with modifications from the I. 17 February 1993, n. 33, in relation to the suspension, from the date of July 18, 1992, of the payment of the debts of the … and of the subsidiaries, it disposes verbatim that the suppressed institution and the latter are not obliged to correspond to public or private subjects any sum for default interest, for penalties or penalties, however named, provided by laws, administrative deeds or contracts, as a consequence of the failure to make payments or delays in payments, due to suspension.

The exceptional nature of the law makes it clear, to say nothing else: a) that it concerns (like the correspondence valued by the recurring company) exclusively the position of the … and of the subsidiaries and not, as punctually warned by the sentence challenged, that of third parties who had assumed contractual commitments, relying on the performance of the same companies; b) that it concerns the consequences of the non-fulfillment of the pecuniary obligations whose payment had been suspended and not of other services in cases precluded by the reaction of the suppliers.

It follows that this discipline does not affect in any way the assessment conducted by the territorial court, as regards the imputability or not to the counterpart of the Ministry of … of the peaceful delay recorded in the performance of the services with respect to the agreed deadlines.

Nor, in the opposite sense, can it be appreciated, not even in terms of the violation of the rule dictated by art. 1375 cod. civ., the circumstance that the original contracting company had been authorized to make use of the collaboration of … s.p.a., since such authorization, evidently aimed at ensuring the Ministry the knowledge of the subjects involved in the execution, in any case did not entail any transfer to the customer of the risks deriving from the possible non-fulfillment of the authorized subcontractors.

Just the text of the contractual clauses reproduced by the applicant shows that the approval of the Administration does not modify the contractual clauses […] and, therefore, the company taking over this contract remains entirely responsible towards the Administration of …. of any eventual default as regards the fact of the contractor.

Excluding, therefore, that the assessment made by the territorial court results in a violation or misapplication of legal provisions, it remains only to be observed that the appreciation of the derivation of the non-attributable cause is an appreciation of fact, as such insurable examination in the legitimacy, if duly motivated (Cassation 10 March 2009, No. 5736). And it is in this context that one appreciates the logic of the justifying argument expressed by the contested sentence, as regards the diligence charges of the original contractor, as regards the position of the company tenant, certainly solvent and able to offer, according to the appreciation of the court of merit, not drawn from any specific complaint, sufficient guarantees to suppliers and, finally, to the possibility of having the exemptions to suspension of payments, however, also concretely exercised and usefully exploitable at least in one case – the same of the appellant’s own allegations.

For the sake of completeness, we note the absolute generality of the criticism addressed to the evaluation of inadmissibility of the late inquiries, whose contents are not even indicated.

4. With the sole reason of the incidental appeal, he complains, pursuant to art. 360, first paragraph, n. 4, cod. proc. civ., violation or false application of articles 111 and 331 cod. proc. civ., since: a) the appeal brought by the successor in the disputed relationship, without involving the assignor; b) the inertia of the latter in not proposing an independent appeal; c) the attitude of the counterparty of the addressee of the appeal who, in coming to trial, refrains from expressing the will to continue to involve the assignor, are all elements that lend themselves to being appreciated as consent to the exclusion of the original holder of the report.

5. The appeal is well founded. The judgment of appeal without integrating the adversarial against the alien of the disputed right, but with the participation of the successor in particular, is valid when the first, not challenging the sentence, has shown his disinterest to the encumbrance and the other part, without making exceptions in this regard, has accepted the adversarial vis-à-vis the successor; these elements, in fact, integrate the conditions for expulsion from the judgment of the aforementioned transferor, an expulsion that, although not formally declared, ceases the quality of the necessary litigation of the original part (Cassation, May 17, 2010, No. 12035; February 2011, No. 3056).

And, in this case, it is the same territorial court that acknowledges the existence of these assumptions, in particular underlining the absence of any importance of the counterpart (that is the appellate Ministry).

6. In conclusion, the main appeal must be dismissed. In relation to the acceptance of the incidental appeal, the contested sentence should be dismissed without reference, since, as the necessary litigation was no longer necessary, the trial should not continue against the person called.

There is no provision for the regulation of the costs borne by the main applicant, given the delay in filing the Ministry’s counter-appeal, while the justifying requirements for the compensation of expenses in relations with the … s.p.a.

Reject the main appeal. It accepts the incidental appeal and, in relation to the proposed acceptance, the judgment appealed against, with reference to the position of the … s.p.a.

Source Supreme Court of Cassation