The danger of claims of property

In the case of a preliminary contract for a property purchase, the promissory buyer may suspend payment of the price when he has reason to fear that the property may be claimed by third parties, unless the seller has provided for an appropriate guarantee.

This principle is established by Article 1481 of the Italian Civil Code, which grants the buyer an instrument of self-protection in the event of danger of losing the property. As a consequence, the buyer has the right to obtain from the seller a proper guarantee (e.g. mortgage, bank guarantee, bank deposit, etc.). The requirement for this measure to be legitimate is that the fear is grounded.

Recently, the Italian Supreme Court expressed its opinion on this principle, clarifying that the danger of claims must be real and not merely presumptive. Specifically, the danger must be current and concrete, which means that it must be based on objective elements and not on subjective fear.

In the specific case, the Supreme Court has often ruled that the origin of the property from a donation is not a sufficient condition for the promissory buyer to suspend the payment in the unfounded fear of future legal action by the heir.

This principle also may apply to bankruptcy. The bankruptcy of the seller is not a sufficient condition for suspending the payment, unless there is a writ of summon from the insolvency administrator.

In conclusion, it is important to notice that the suspension of the payment is always a provisional protection. In fact, the parties must clarify the situation by agreeing to terminate or to conclude the contract.