ORDER (PER CASE)
Cass. Civ. Sec. United Sent., 09.09.2010, No 19,246
Done Right PQM
Conduct of case, the Court of Lecce, in its ruling of June 15, 2000, said the opposition filed by CG declined jurisdiction against an injunction issued in favor of bancApulia spa, as the opponent, while having assigned a term contrary to appear less than 60 days, it is beyond a period of five days of notification of the proceedings.
The Court of Appeal of Lecce, in its ruling of July 1, 2003, confirmed the decision at first instance by calling the course charted by this court, inter alia, in sentence no 37,521 in 2001, according to which the abbreviation of the terms of a constitution for the opponent automatically follow the objective fact of the grant as opposed to a period of less than sixty days to appear, making it completely irrelevant that the grant is to be depended on a conscious choice or by miscalculation. The
C. appealed to the Supreme Court on three grounds, illustrated with memory, which has resisted, with the defense, the bancApulia spa.
By order of November 12, 2008, the first section, considering that the orientation of the court consolidated these problem areas has referred the documents to the first President for the award these sections together.
The first section has indeed found not to respond to the rite of the Code which govern the terms of a procedure can be derived from the choice of a party to the proceedings, outside of any control by the court. Irrelevant would be the point of art. Cpc 645, subsection 2, which lacks an express requirement of a halving of the terms of the Constitution which, in fact, be inferred from Article. 165 and 166 of the CPC, which, however, provide for the reduction in terms of establishment as a result of the reduction in terms of appearance was made by the court at the request of the plaintiff in the recurrence of the conditions specified in art. 163 bis cpc.
However, if it were true the assumption of the existence of a principle of adjusting the terms of the constitution to reduce the appearance of those terms of the constitution should always operate in opposition to the injunction proceedings, because the wording of Article . Cpc 645, subsection 2, does not allow any discretion. But if the ratio of the reduction in terms of appearance is to accelerate the definition of the lawsuit it filed, the goal of reducing the terms of the constitution is not consistent with this objective, given that the period of formation of the creditor shall begin not from the opposite Constitution of the opponent, but the hearing date to appear, which, inter alia, due to the modification of art. 163 bis cpc, introduced by L. No 263, 2005, Art. 2 is extended from sixty to ninety days to Italy and a hundred and fifty to one hundred twenty days if the place of service is abroad. Therefore, without an appreciable benefit for the early definition of the lawsuit it filed, you end up introducing a particularly heavy burden borne by the opponent, which only formally similar burden would be balanced by the creditor opposite, which can not in any way be treated as the defendant in an ordinary trial, he having, indeed, as an actor in a substantive way. In this situation, where it is considered active, reducing the time Constitution to effect automatic allocation to the opposite of creditor for a shorter period to forty-five days would be an obvious unreasonable since, in the face of a period of up to the opponent of only five days, the opposite should be within ten days before the hearing to appear, coming so far to enjoy 35 days to provide for their defense. The pressure thus rests sull'opponente, and does not apply to reduce the time length of the process of opposition would be unwarranted given that the opponent is the only actor in the formal sense, but essentially agreed, and the need to take the cause not the result of a considered choice in a period of assessment, but require the notification of the order, where the opposite has time to establish much wider, though, an actor in a substantive way has received widespread availability of time to appeal the decision to injunction.
Reasons for Decision 1. In its first plea, the applicant submits the failure and / or insufficient justification about the decisive points with reference to art. CPC 645, paragraph 2 and art. 647 Code of Civil Procedure, arguing that the appeals court would uncritically resting on the orientation of legitimacy of law, without regard to the relief, raised in the appeal, because that would make the abbreviation the terms assigned to the creditor to appear opposite is required a conscious expression of will of the opponent the option provided by law, made either explicitly or inferred from conclusive evidence. In the present case were not adequately assessed the situation that the time for appearance was only given seven days less than the minimum and that the constitution took place on the ninth day, which had to tend to a clerical error in calculating the period of appearance . Considered irrelevant to the error introduce a rebuttable presumption of the exercise of an abbreviation of the terms for the opponent is not allowed by law, turning right at a obligation. In addition, the applicant states that the prediction of the renewal of summons (Art. 164 CCP) in the case of assignment of a term less than the law should also be applied in the trial of opposition to injunction, which is an ordinary court of cognition, is insufficient reference to the specialty of the rite to justify the imposition of a penalty, such as that of admissibility.
its second plea, alleging infringement or misapplication of Article. Cpc 645, subsection 2, with reference to Article. 647 CCP, it is argued that the trial of opposition, according to art. 645 Code of Civil Procedure shall apply the ordinary rules of procedure and therefore in the case of formal proceedings, not failure, but merely delayed, the penalty is not justified dell'improcedibilità case, applied only to the appeal proceedings article. 348 Code of Civil Procedure, as amended by Law No 353, 1990. It is also reported substantial inconsistency in holding inapplicable to the specialty of the ritual, art. 164 cpc doing at the same time application of the provisions of Articles. 165 and 163 bis cpc.
The third reason, the applicant submits false or incorrect application of Article. Cpc 645, subsection 2, as it is not proper extension of the shortened time limits provided for by the constitution. 165, for the case where the court has authorized the reduction of the minimum to appear, a situation in which, reducing the time for appearance is a result of mere choice of a party.
2. The reasons given by the applicant, in part developed and implemented an interim order of the First Civil Chamber, are not adequate to justify a change in the constant guidance of the court, although, as will be explained later, it is appropriate to make a clarification. Apart from a previous single dating contrary, was totally isolated (Cass. January 10, 1955 No. 8), the Court's jurisprudence has been consistent in saying that when the opposing party has exercised the option to specify a time of summons under the ordinary, the term for its establishment is automatically reduced to five days of service of a summons in contrast, half the normal period of formation (the principle stated in Article force. 645, as amended by Presidential Decree No. 597 of 1950 , Art. 13 beginning with Cass. October 12, 1955, No 3053 and then steadily thereafter; recently, see Cass. No 3355/1987, 2460/1995, 3316 and 12044/1998, 18942/2006).
More recently, in the context of this guideline, it is further stated that the abbreviation of the term constitution for the opponent automatically follow the objective fact of the grant as opposed to a period of lower than normal appearance, it is irrelevant that the setting of this period depended on both a conscious choice or by miscalculation (Cass. No 3752/2001, 14017/2002, 17915/2004, 11436/2009).
Contrary to what was deemed to be a part of the doctrine guidance mentioned here is not without the necessary legal basis.
fact, if it is true that in the original code of '42, art. 645, paragraph 2 provided for the reduction to half of the terms "constitution", while the reduction in the current wording of the provision refers only to the mid-terms of "appearance" from the legislative history does not, however, that the text amendment was introduced to resize function accelerator of cutting in half the time of creation given in the framework previously in force, but only that the rule had been imposed as a necessary consequence of the introduction of the summons to the hearing fixed.
There is, however, no objective reason to justify the opposite opinion which considers that the silence of the legislature in order to discipline the terms of the constitution, against the express provision in the legislation previously in force, is significant of the desire to change the rule expressly established by art. Cpc 165, subsection 1, which establishes a link between terms of attendance and terms of the Constitution in order to bring coherence to the system in cases that require prompt treatment.
It follows that this rule can not be regarded as some kind of exception or derogation, but an expression of a general principle of rationality and consistency with the result that the express reference in Art. 645 of this principle would be entirely superfluous.
Nor is the decisive importance, undoubtedly correct, the difference between the case in art. Cpc 163 bis, paragraph 2, in which the consequence is an abbreviation of the terms by the court of the existence of reasons for a speedy handling of the case proposed by the plaintiff, and that in art. 645 CPC, in which this appreciation is taken (not by hand, as supports the referral order, but directly) by the legislature once and for all, being identical in both cases the function of halving the terms of appearance, namely, first, in meeting the needs of acceleration of proceedings and other , in the opportunity to balance the compression of the terms available to the defendant with the reduction in terms of establishment of the actor.
Since the peaceful existence of the need calls for discussion of the opposition, to enable verification of the validity of the measure summary obtained by the creditor ex parte, it must be observed that there is also a need to balance the positions of the parties, while taking into account the peculiarities of the opinion that the opposition, as is known, the nature of a full assessment of cognition that devolves to the court's thorough examination of the opposition relationship in dispute, and not simply a preliminary review of the legality of the decree order. E 'is also common ground that, unlike the formal qualities, and the opposing positions are those of the opposite, respectively, defendant and plaintiff in a substantive way. Now, although the opposite has had plenty of time to set its position before asking the trial court order, is also true that, faced with allegations and evidence produced or requested by the opponent, the ' has the opposite need to evaluate them in order to prepare his defense and to this end there is a need to have the documents on which the opposition is based as soon as possible, to balance the sacrifice of the term at its disposal to assess the evidence and articulate hearing before the court in its constitution.
What is certain is that certainly needs to calls for better treatment of the opposition proceedings would be met if more than half of the reduction in terms of opposing the constitution the legislature had also reduced by the fair terms of establishment of the opposite , which instead remain quite large (thirty-five days of notification of the opposition that is, ten days before the hearing to be fixed at not less than forty-five days after the notification under Article. 166 CCP), but this opportunity to indulge "eurythmy system (court cost. No 18/2008), does not affect the validity of the ground that the opponent's half of the terms of the constitution, however, is one, albeit partial and perhaps unsatisfactory, being accelerated procedure.
3. Part of the doctrine, echoed by order of the first civil division, said that the wording of Article. 645 cpc suggests that halving the time for appearance is an effect of the legal opposition and proposition is not dependent instead of the will of the opponent intends to assign a shorter period than that prescribed by. 163 bis cpc.
Indeed needs certainty and thus to guarantee the parties, before the imposition of time under penalty of prosecution of the opposition, has already led to introduce traditional orientation, based on the optional nature of the concession by the opponent to a time to appear lower than the legal, temperament made by the emergence of irrelevance of the will of the opponent that could have given a shorter period even by mistake.
They believe that the requirements of sections merged systematic coherence, as well as practical, induce to say that not only the terms of the constitution of the opponent and the opposite is automatically reduced to half in the opposite case of an actual assignment of a term to appear less than the legal one, but that this effect is automatic consequence of the fact that only debunks the opposition is given, as the art. 645 Code of Civil Procedure provides that in any case Opposition to the terms to appear to be reduced in half. If, however, in which the opponent sets a deadline for an appearance equal to or greater than the legal one, still saves the power of the opposite, formed within dimidiato, the anticipation of the hearing to ask for an appearance in accordance with Article . 163 bis, paragraph 3.
On the other hand, if effectively halving the terms of the constitution depended on the will of the opponent to assign a deadline to appear less than the legal one, you do not understand the reason why, according to the jurisprudence of this Court, are cumulatali halving estimates derived from abstract legal in art. 645 cpc, what can be derived using a proper measure of halving of the terms required under art. 163 bis, paragraph 3. (Cass. No 4719/1995, 18203/2008).
Nor could lead to different conclusions, the observation that if it is considered irrelevant to the opponent's will assign a deadline to appear less than the legal one, it might raise the question that the sacrifice of his term of constitution can not be justified in the light of Article. 24 of the Constitution, as might be inferred from the court cost. No 38/2008. In fact, the legal effect of halving the terms of establishment of the opponent, an official of the opposition is simply because of the proposition, it is still an effect from the choice of the debtor can not not know what the consequences are that the procedural law linked to his initiative.
Finally, the magnitude of different terms of establishment of the opponent than the opposite would not appear unreasonable given that the constitution is the first post-processing of the defensive line that has already resulted in the act of opposition to the court in which the Constitution does not require the completion of a simple material activity, while in time for its establishment, the opposite is not called simply to reiterate the reasons for his application for an order, subject to the processing stage prior to bringing an action for injunction, but the need to evaluate the allegations and the evidence submitted by the opposing party to formulate its response.
4. E 'consolidated guidance of this Court in the trial of opposition to injunctions, the late establishment of the opponent should be treated in the failure to establish and involves the admissibility of the opposition (Cass. n. 9684/1992, 2707/1990, 1375/1980, 652/1978, 3286/1971, 3030/1969, 3231/1963, 3417/1962, 2636/1962, 761/1960, 2862/1958, 2488/1957, 3128/1956). E 'undeniable fact, on the one hand, that the specialty of the rule in art. Cpc 647 prevents the application of ordinary rules of the process of cognition, and second, that the constitution is nothing but a late failure to establish within the time specified by law. The applicant has not proposed decisive reasons that may lead the Court to depart from that approach. In conclusion, the appeal must be dismissed.
There are good reasons in relation to the existing debate on issues addressed by this court, to offset costs.
PQM
The Court rejected the appeal and award costs.
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