With decision
no. 19785/2015, filed on 5 October 2015, the Joint Sections of
the Supreme Court (L.A. Rovelli Presiding –A. Spirito Reporting Judge) issued
their judgement on the matter of financial leases, addressing the issue of the
remedies the user may invoke in cases of defects of the leased asset.
The Joint
Sessions start from the presupposition that the finance lease agreement is a
type of contract that comprises two mutually connected contracts – the actual
lease agreement executed by and between the grantor and the user, and the
supply agreement executed by and between the grantor and the supplier in order
to satisfy the user's interest to acquire the availability of the item - and
that the user is entitled to act to obtain the performance of the supply
agreement, in addition to compensation of the damages consequently incurred.
Instead, in
the absence of an express regulatory provision in this regard, the user may
exercise the action to terminate or to reduce the price of the sale agreement
between the supplier and the grantor to which the user is extraneous only in
the presence of a specific contractual clause whereby the grantor transfers to
the user its own substantial position.
Subsequently,
the Court made a distinction according to the moment – before or after the
delivery of the thing – in which the defects may manifest themselves. If the
defects emerge before delivery, which is thus refused by the user because of
the unsuitability of the asset for use, the grantor must suspend payment of the
price in the supplier's favour and act with respect to him for the termination
of the supply agreement or for the reduction of the price.
Vice versa, if the defects
manifest themselves after delivery, as latent defects or as defects that were
not disclosed by the supplier in bad faith, the user shall be entitled to act
directly with respect to the supplier to obtain the elimination of the defects
or the replacement of the item. Regardless of the time when the defects are
discovered, lastly, the user is entitled to act with respect to the supplier
for damage compensation and the return of the payments already made to the
grantor.