Studio Legale Pavan Website

Speeding and pre-signation obligation

The Court of Cassation with the order n. 29595 on 22th october, 2021, decided about street circulation. The Court ruled that D.M. 15.8.2007 was not applicable in the part where it exempted the use of speed detection instruments with dynamic or tracking modes, because it is in contrast with art. 142, c. 6bis, D.lgs. 285/1992, a higher-ranking rule, which establishes the obbligation of notificati...

From detention to possession with the completion of material activities

The Court of Cassation with the order n. 23458 on August 26th, 2021, in the matter of “usucapione”, confirmed that the performance of material activities that manifest power over the thing exclusively on behalf of and in his own name in a not equivocal mode and in a recognizable way by the person entitled gives rise to the transformation of possession into possession....

Separation, infidelity charge and maintenance review

The Court of Cassation, with the order n. 30496 on 28th October, 2021, confirmed that infidelity cannot lead to the statement of debit of the separation to the unfaithful spouse if this was not the cause that gave rise to marital crisis which was already irretrievably in place. In absence of the debit of the separation, the incomes, through which the maintenance allowance have to be determined,...

School liability for damage to pupils

The Court of cassation, with the decision n. 32377 on 8th november, 2021, confirmed the contractual nature of the responsibility of the school and the teacher for any damage suffered by pupils and caused by the lack of supervision or control during school time. The school will be responsible because the admission of the student establisha constraint of negotiation from which derives the...

In the field of forced enforcement, if the enforceable title lapses, the subject of the opposition shall cease

The United Chambers of the Court of Cassation, with the decision n. 25478 on September 21th, 2021, focused on the issue of forced execution undertaken on the basis of a not definitive judicial order and, in particular, on the effects of the supervening lapse of the enforceable title as a result of a judgment of the judge of cognition. The Supreme Court established that, in this case, any judgme...

The working time is also the time spent on compulsory vocational training

The Court of Justice of the Europea Union, in case C-909/19 decided on 28th October, 2021, analizes the article 2 (1) of the Directive 2003/88/EC of the European Parliament and of the Council of 4th November, 2003, concerning certain aspects of the organisation of working time. The Court states that also the time during which the worker doesn’t perform his usual duties, but attends vocational...

How to determine the value of the marital home to be paid to the non custodial spouse

The Second Section of the Court of Cassation, with the decree n. 28871 on 19th October, 2021, sent the documents to the First President for the possible assignment to the United Sections of the debated question relating to the division of the family house in the event of separation. The issue matter of jurisprudential contrast concerns the need or not to consider the assignment of the enjoyment...

Break of engagement and return of the property donated in view of the wedding

The Court of Cassation with the decree n. 29980 on 25th Octobet, 2021, established that the gifts made because of the promise of marriage (article 80 of the Italian Civil Code) are real donation and, therefore, they can have ad object movable property or real estate and they are subject to the requirements of substance and form provided by the Civil Code. In fact, the gifts are not traceable to...

In the contract of transfer lease is valid the clause that, in the case of resolution, allows the transferor to retain the expired fees and those not yet accrued

The Court of Cassation with the decree n. 28022 on 14th October, 2021, confirmed the decision of the United Sections of the same Court in the matter of leasing expressed in the judgment n. 2061 on 28th January, 2021. The clause that, in the case of resolution for breach of contract by the user, gives to the grantor the possibility to claim the fees already expired and those not yet accr...

The rule referred to in article 2558, paragraphs 1 and 3, of the Italian Civil Code extend to the lease of business branches

The Court of Cassation with the decision n. 27691 on 12th October, 2021, confirmed that the discipline provided by article 2558 paragraphs 1 and 3 of the Italian Civil Code is applicable not only in cases expressly provided, but also in cases where it takes place, by virtue of a legal circumstance suitable for producing it, the replacement of the entrepreneur in the course of the undertaking. A...

The removal of the company from the register of companies doesn’t give rise to the presumption of waiving litigation claims

The Court of Cassation with the decree n. 27894 on 13th Octobet, 2021, established that the members don’t take over the ownership of the company’s contentious claims only if the intention to renounce to them was manifested at the time of removal of the company from the register of companies. The waiver may also be expressed in tacit form, but in this case it is necessary that the abdicative...

The victim of an anti-competitive practice by the parent company may also bring an action for compensation against a subsidiary of that company

The Grand Chamber of Court of Justice of the European Union, with the decision n. 882 on 6th Octobet, 2021, decided that the article 101 TFUE prohibits to Member State from providing in their legislation the possibility of imputing liability arising from the conduct of the subsidiary to the parent company. Therefore, the action for damages brought against the subsidiary isn’t contrary to that...