Commentary on Judgment Cass. civ., Section III, Ord. no. 28558 of 2024: the ineffectiveness of real estate transfer during separation

The recent ordinance no. 28558 of the Court of Cassation, issued on November 6, 2024, offers important food for thought regarding the validity of real estate transfer deeds made between spouses during separation. The judgment, in fact, addresses the delicate issue of the ineffectiveness of such transfers when third-party creditors exist, shedding light on fundamental aspects related to the protection of creditors' patrimonial rights and the transparency of transactions between spouses.

The context of the judgment

The case in question involves A.A. and B.B., who find themselves having to face a request for revocation of a real estate transfer deed, deemed ineffective pursuant to art. 2901 of the Civil Code. The Court of Appeal of Rome, upholding the appeal of the company ITALFONDIARIO, had declared the transfer ineffective, considering that B.B. had not demonstrated his patrimonial capacity at the time of the transfer. This aspect proved crucial for the final decision of the Court of Cassation.

Analysis of the Court of Cassation's decision

Firstly, the Court confirmed that the transfer of real estate from one spouse to another, carried out in fulfillment of obligations arising from consensual separation, can be subject to revocation if it proves detrimental to the rights of creditors. The Court of Cassation emphasized that, to assess the *eventus damni*, it is essential to consider the transferor's patrimonial capacity at the time of the transfer.

The classification of the transfer as a gratuitous or onerous act and the existence of the *eventus damni* are assessments of merit, not subject to review by the Court of Cassation.

• The Court reiterated that the separation agreement, while having value, is not in itself sufficient to justify the transfer if it compromises the patrimonial guarantees for creditors.
• Furthermore, it emerged that B.B.'s alleged patrimonial capacity was not supported by concrete evidence, but rather contradicted by his documented economic situation.

Conclusions

The judgment of the Court of Cassation no. 28558 of 2024 represents an important affirmation of principle regarding the balance between the need to protect creditors and the freedom of spouses to make decisions during separation. It clarifies that patrimonial transactions between spouses must be carried out with the utmost transparency and that the protection of creditors' rights prevails in situations where there is a risk of prejudicing their patrimonial guarantee. The correct assessment of the transferor's economic capacity therefore becomes a fundamental element for the validity of transfer deeds, thus avoiding possible conflicts between the rights of the spouses and those of the creditors.