Preliminary sale agreement and bankruptcy

With their decision no. 18131/2015, filed on 16 September 2015 (L. A. Rovelli presiding - R. Vivaldi reporting judge), the Joint Sections of the Supreme Court affirmed that the receiver of the promissory seller may not exercise the right to terminate the preliminary agreement under Article 72 of the Italian Bankruptcy Law with respect to the promissory buyer, if the latter transcribed, before the declaration of bankruptcy, the petition for performance in specific form proposed in accordance with Article 2932 of the Italian Civil Code and said petition was granted with a decision which in turn was transcribed. The Joint Sections had already issued a decision on this question, i.e. decision no. 12505 of 7 July 2004, but the principle expressed therein was often disregarded by the Single Sections that subsequently addressed the question, so an additional decision became necessary to resolve the contrast, confirming the previously expressed approach. By virtue of the recent decision, in case of bankruptcy of the promissory seller the receiver retains the option prescribed by Article 72 of the Italian Bankruptcy Law to take over the preliminary agreement pending at the bankruptcy date or to withdraw therefrom, even when the non-compliant party – the promissory buyer – has requested the judge to issue a constitutive judgement to serve in lieu of the unperformed agreement under Article 2932 of the Italian Civil Code. However, if the promissory buyer transcribed his petition in accordance with the provision of Article 2652, no. 2, of the Italian Civil Code before the bankruptcy judgement is posted in the register of companies, then the receiver may not enforce the termination of the agreement. Said unenforceability derives from the granting of the judicial petition and the transcription of the related decision. By virtue of the retroactive effect produced by the transcription of the petition, the transcription of the granting decision, therefore, pre-empts the date of transcription of the petition. Vice versa, if the proceeding initiated by the promissory buyer ends with a decision to reject, the retroactive effect of the transcription of the petition ceases and the receiver may enforce, against the plaintiff - promissory buyer, the adjudication in bankruptcy and the choice to withdraw from the preliminary agreement.