Circolazione dei beni di provenienza donativa diretta e indiretta

Di Giancarlo Iaccarino -

The circulation of the immovables coming from donations, either direct or indirect, has always been an intricate problem, which has involved both scholars and jurisprudence. This essay tries to examine the issue starting from the sentence of the Supreme Court in joint sections, no. 9282/92, until the recent decision of the II Section of Supreme Court, no. 4523/22. At first glance, it seems that, through the last sentence, the judges have questioned the rather satisfactory and acceptable results attained by scholars and jurisprudence after the decision of Supreme Court n. 11496/2010. As a matter of fact, it is not so. In particular, the sentence 4523/22, on one hand, has the merit to have pronounced two acceptable principles. The first regards the time to take legal action for simulated donations by means of which the legal heir is allowed to suit the doner without waiting for the death of the donor. The second concerns the time of application of the law 80/05 which starts from the day of its entry into force, that is 15th May 2005, for all the donations, also for those drawn up before the above said law even if on that day the 20-year term, as established by art. 563 c.c., had expired. On the other hand, it has, without reasonable reasons, questioned the safe circulation of the immovables, which come from indirect donations. Actually, the Court has incredibly argued that the special action «di restituzione» provided by the art. 563 c.c. is applicable to the direct donations as well as to the indirect ones.