ECC.MA SUPREME COURT OF APPEAL WITH DEFENCE CASSAZIONE
INCIDENTAL
interests of Delta SpA (hereinafter, briefly, "Delta"), established in ... ... on ... ... ... ... CF and PI, in the person of ... ..., represented and, by virtue of the special prosecutor in the end of this act, by. ... ... The Court of Rome, and elected domicile at his studio in Rome, on ... ...
- resistant and recurrent incidentally -
AGAINST
Beta SpA (hereinafter, briefly, "Beta"), represented by its legal representative pro tempore, represented and Avv. ... ... And address for service at his studio in Rome, on ... ...
- sought -
in the proceedings brought with Delta to appeal served on ../../ ...., For the annulment of the sentence no Of ... ... ... ... Court of Appeals, dated ../../ ...., Filed on ../../ ...., Notified on ../../ .... .
I. - Done and moving the process
1 .- By a summons dated ../../ .... Beta Delta sued in the Court of ... ... made the following questions ... .... In support of these applications Beta has concluded that ... ...
With its response on ../../ .... Delta has been in court, and objected at the outset the action was time-barred by collateral held by Beta, pursuant to art. 1495 cc and in substance to rebut the claims and demands of the actress, asking the full rejection. Delta also reduced by the failure of Beta obligation under the contract between the parties, to purchase a minimum quantity of goods, in a counterclaim asking the question of that breach of contract and damages. At the hearing on
../../ ...., The judge assigned to the parties the terms of art. 183, comma 6, c.p.c., a seguito del quale Beta ha depositato la prima memoria in data ../../…. con la quale ha contestato il dedotto inadempimento contrattuale sostenendo che il contratto non prevedeva alcun impegno quale quello indicato da Delta e comunque invocando il disposto dell’art. 1460 c.c.; Beta ha inoltre formulato istanza per l’ammissione di consulenza tecnica diretta a individuare le cause del sinistro e la quantificazione dei danni, e ha assunto le seguenti conclusioni …… .
Nelle proprie memorie ex art. 183, comma 6, c.p.c. Delta ha insistito nelle eccezioni e domande svolte con la comparsa di risposta e chiesto il rigetto delle istanze istruttorie di Beta.
Con ordinanza in data ../../…., il Court dismissed the requests of Beta inquiry and invited the parties to clarify the findings, setting a hearing for ../../ .... . At that hearing
Beta said the findings proposing those taken with the memory art. 183, paragraph 6, No 1, cpc on ../../ ...., Delta said the findings by reference to those contained in the response and subsequent pleadings, so as follows ... ...
With No Judgement Of ../../ ... ... ...., Filed on ../../ ...., The Court of ... ..., in upholding the preliminary objection of limitation raised by Delta has rejected the applications of Beta. The Court also rejected Delta's counterclaims, finding that ... ..., and has offset the cost in the region of partial mutual loses.
2 .- An appeal against the said decision of the Court of ... ..., Beta appealed, with a summons on ../../ ...., Asking the Court of Appeals ... ....
With its response on ../../ .... . Delta was founded in appeal proceedings demanding the dismissal of the adversary and suggesting in turn appeal incidentally, made the following conclusions ... ....
The Court, by order made at the hearing, referred the case to the hearing on ../../ .... for clarification of the conclusions, in which the parties have relied on the pleadings in the above questions, and the Court has held the cause in the decision.
With No Judgement ... ... ... Issued on ../../. and filed on ../../ ...., the Court of Appeal dismissed the appeal filed by Beta in the main street and the appeal of cross-Delta, confirming the decision at first instance and in holding as follows ... .... 3 .- With
appeal served on a Delta ../../ ...., Beta has appealed to the Supreme Court against the aforementioned decision n. Of ... ... ... ... Court of Appeals, arguing the following means:
- "violation and misapplication of Article. 2395 cc in relation to the plea in the first paragraph, no 3, art. Cpc 360 "by this means, the applicant complained that the Court of Appeals failed to apply the provisions on prescription and in particular the provision of Article. 2935 cc, as stated in the action required to secure the course of one year from the delivery of movable property, provided by Delta, without considering that Beta could not assert his right, before the expiry of that period, not being at that date carried out the checks necessary to identify the cause of the accident, therefore, the applicant, the Court erred in finding the required action, as it applied the provisions of art. 2935 cc
- "violation and misapplication of Article. 2943 cc in relation to the plea of \u200b\u200bArticle. 360, paragraph 1, no 3 Code of Civil Procedure "and" omitted and, however, insufficient grounds for the decision made about a controversial and crucial to the proceedings (Article 360, paragraph 1, No. 5, CCP), in relation to failure to take account of an event which interrupts the prescription " : by this means, the applicant complained that the Court of Appeals would rule out the effect of interrupting the limitation period of the letter dated ../../ .... in violation of Article. 2943 cc and with insufficient justification given the findings Document;
- "violation of Article. 112 in relation to the plea in the first paragraph, no 3, art. Code and 360, however, insufficient and contradictory reasons for the decision made about a controversial and crucial to the proceedings (Article 360, first paragraph, No. 5, CCP), in relation to the ruling on the question of damages for breach requirement of customer service provided by the contract "means the applicant complained that the Court of Appeals ... ... failed to rule on any of the questions proposed by the applicant, in violation of Article. 112 Code, and in particular on the question of damages resulting from the Delta's obligation, which was stipulated in the contract between the parties of ongoing assistance to end users of Beta. According to the applicant, the Court of Appeals failed to rule on the specific and independent ground of appeal on the point raised by Beta, which had criticized the decision at first instance in which the Court of ... ... had rejected this demand, as the Court limited a general confirmation of the decision at first instance without any reasoning on this point.
II .- Law and the counter-action opponent.
1 .- The first half of the applicant's main appeal:
With reference to the first ground of appeal, he alleges, first eligible, to Article. 360 bis, n. 1, cpc
The applicant alleged a violation of Article. 2935 cc As is known, the inability to enforce the law, to which art. 2935 cc attaches importance to the fact of the preventative effect of the requirement is only that which comes from legal causes which hinder the exercise of that right and does not cover the impediments or obstacles of a purely subjective fact, as those who find their cause ignorance, by the owner, the event generator and the delay of his right which he proceeds to check (see Cass. ... ...). In this case the circumstances cited by the applicant are represented by mere impediments vice versa of fact. Indeed, Beta has invoked the following circumstances ... ....
The sentence appeal is therefore in conformity with the provision alleged to infringe and guidelines established Ecc.ma Of this Court regarding the interpretation and application of that rule, guidelines with respect to which the appeal opponent does not offer evidence that would justify a different interpretation terms and the assumption made by the applicant.
For the same considerations, the sentence must be considered beyond reproach and its means of action as unfounded.
2 .- The second half of the main appeal of the applicant: The applicant
criticized the ruling of the Court of Appeal has ruled that effective interrupting the limitation period under Art. 2943 cc to the letter of ../../ .... Contributed by Beta Delta. The applicant claimed that ... ... (Recv. Chambers., P.. ... ...). The vessel was raised both in terms of violation of rules of law, both in terms of lack of reasoning in order to a decisive event of the dispute.
The first half is unacceptable under Article. 360 bis, n. 1, cpc The ruling of the Court of Appeals ... ... contested fact has rejected the appeal and upheld the ruling of Beta of First Instance had ruled that the letter of the effectiveness of interrupting ../../ .... complying with the legal issue of consolidated guidance Of this Ecc.ma Court about the requirements of the act of formal capable of interrupting the limitation period under Art. 2943 cc
The decision under appeal, to justify its decision, has found that ... ..., and then repeatedly accordance with the policy expressed by the Supreme Court to the effect that ... ....
addition, the applicant did not specify the reasons why in this case suggests that it should be changed.
The medium is also unacceptable in regard to the reconstruction of relations between the parties made by the trial court and removed from discretionary assessment of review. Under the guidance of consolidated
MISUSE Ecc.ma Court, that an act may become enforceable interrupting the limitation period, in accordance with art. 2943, paragraph 4, Civil Code, it must also include an explanation of a claim, ie a notice or a written request for compliance, such as to express the unequivocal will of the owner of the claim to assert his right against the party passive, with the effect of formal notice. The finding of objective requirement (not apparent in the simple stress-free nature of intimacy and expressed formal request to debtor) is in fact reserved for the appreciation of the investigative judge of the merits, not in the questionable legality if immune logical defects and suitably substantiated. In this case, the Court of Appeals has stated the reasons why it considered inappropriate to the Act for the purpose of interrupting prescription, noting that ... ....
The rationale has been criticized in conjunction with Article. 360, paragraph 1, no 5, Code of Civil Procedure for failure to state reasons.
In this case, the letter of ../../ .... merely to recognize that reserving ... ... ... .... As correctly noted by the Court of Appeals, then the letter contained a reservation of all generic and as such unfit to be a manifestation of intention to rely on the warranty. The ruling then made the correct application of the rules cited by the applicant and is about to immune defects in logical reasoning, fully consistent and compliant with the underlying documentation.
3 .- The third remedy
By this means Beta alleged a violation of Article. 112 Code of Civil Procedure arguing that the Court of Appeals ... ... failed to rule on an applicant's request and on a specific ground of appeal. Censorship is proposed is a violation of Article. 112 CCP art. 360, paragraph 1, no 3, is omitted or insufficient justification for art. 360, paragraph 1, no 5, cpc
The reason is unacceptable. According to the guideline established Ecc.ma Of this Court, the decision of the appellate court can not examine and decides a ground for complaint of the ruling of the court of first instance may be appealed to the Supreme Court not for a lack, or insufficient motivation on a decisive issue in the dispute and not for reasons given in a way but other than that allowed for failure ruling on a ground of appeal. It follows, then, that if the defect is terminated pursuant to art. 360, No 3 or No 5, instead of CCP art. 360, No 4, Civil Code in relation to Article. 112 Code of Civil Procedure, the appeal is inadmissible.
The complaint is unfounded, however, because the rejection of this application also can be deduced from the attacking device that has fully confirmed the decision at first instance and reasons can be deduced from the implicit grounds of the appeal, that appear to be inconsistent with the rulings requested by the applicant.
As is clear from the Court of Appeal ... ....
III .- Right: the grounds for appeal.
1. Violation and misapplication of Articles. 1362 and 1363 cc in relation to the reason mentioned in paragraph 3 of the first paragraph of art. 360 cpc
The Court of Appeal dismissed the cross appeal brought by Delta, with which the member had alleged that the ruling of first instance had dismissed the application for a declaration of breach of contract of Beta and termination of contract the fault of the same beta. With the appearance on appeal on ../../ .... Delta has revived these questions, asking the Court of Appeals ... ....
On this point the Court of Appeals gave the following reasons ... ... ... ... its decision.
Delta believes that the decision under appeal is about to commit an error of law, where the Court held that under the agreements between the parties had not provided any obligation to purchase minimum quantities of Beta. The Court of Appeal has in fact considered only the wording of the clause in art. ... ... ... ../../ Of the contract. which provided sales targets, regardless of the systematic plan and set to further follow-up communications between the parties, which were established in the following consequences in case of failure to achieve goals: a letter from Delta ../../ ...., in which it was stated that ... ... and the next letter Beta of ../../ .... where Beta took note of the contents of the previous letter Delta: communications should be considered supplementary to the contract and related provisions (see doc. ... ... products from Delta with the response of first instance).
The Court of Appeals failed to apply the rules laid down in Articles. 1362, subsection 2, 1363 cc and under which, in the identification of the will of the parties must proceed systematic recourse to the criterion and the coordination of the various contract terms, and the search for the will of the parties taking into account the overall conduct of the parties. The Court of MISUSE Ecc.ma Court, albeit in a non-unanimous, held that the criterion of literal interpretation of the will of the parties claimed art. 1362, cc, paragraph 1, is not placed on a level of supremacy from the criterion represented by the conduct of the parties even after the conclusion of the contract mentioned in paragraph 2 of Rule.
The Court of Appeal erred in finding that first case in the wording of the contract was not likely to give rise to doubts being however, the maxim in claris non fit interpretatio questionable expression of a principle, not the subject of a clear authority, having taken into account in the process of interpretation, even in the face of a given literal may look clear, the conduct of the parties after the conclusion of the contract which prove to be capable of clarifying and determining the will of the parties. In this case, there were acts of the trial documents, and the first letters of ../../ .... and ../../ .... . These letters were referred to the contractual provision containing an indication of revenue targets, and they could not be regarded as supplementary to the contract.
The Court of Appeals failed to consider and excluding any relevance of subsequent conduct of the parties and especially the many letters in which Beta was referring to the objectives stated that ... .... It is precisely the point of ../../ .... where it is said that ... ... and the letter of ../../ .... where it was also stated that ... .... In this way, the Court of Appeals disregarded the art. 1362, subsection 2, Code of Civil Procedure In
not consider the conduct of the parties following the conclusion of the contract and the statements referred to in letters exchanged between the parties, the Court has also violated Article. 1363 cc under which the contract provisions are interpreted by each other, so direct examination was negotiating to rebuild will be global.
The Court of Appeals ... ... then disregarded the rules that the parties' intention to seek even more according to standards that may accompany the literal data.
For all those reasons, Delta SpA, represented and as specified in the epigraph,
ASKS
this Ecc.ma Supreme Court or tribunal should:
- dismiss the action brought by Beta and Delta notified on. ./../ .... against sentence no ... ... Given by the Court of Appeals on ../../ ... ... ...., Lodged with the Registrar on ../../ ...., for all the reasons for rejection are unfounded and explained in this document;
- in allowing the appeal in the alternative proposed by Delta, set aside the sentence no ... ... Given by the Court of Appeals on ../../ ... ... ...., Lodged with the Registrar on ../../ .... limited to the chief who has rejected requests for a finding of Beta obligations to purchase minimum quantities of products under contract ... ../../. to issue and under the terms mentioned in this document, and the subsequent application for an order to pay damages;
- in strict subordination, relative to the appeal, MISUSE Ecc.ma Court if it considers unnecessary additional findings of fact, deciding the merits pursuant to art. 384 cpc, accept the above claims made by Delta, which are rewritten here with the Act's definition of the Opinion filed on ../../ .... On appeal:
... ... ... ...
- order Beta SpA recast costs and fees of this proceeding.
With the original of this defense, the copy shall be deposited notified of the action of Beta, and the file of the two previous instances.
Rome, Mr. ... ... ... ...
Special Prosecution:
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