The Supreme Court and the Nullity of the Construction Contract: Commentary on Order No. 36399 of 2023

The recent Order No. 36399 of the Supreme Court, issued on December 29, 2023, raises significant questions regarding the nullity of construction contracts and the responsibilities of the parties involved. In particular, the case addressed concerns the compensation for damages caused by renovation work carried out without the necessary building permit. Let us analyze the key points of the ruling and the legal implications for professionals in the sector.

The Case Under Examination

A.A. had sued B.B., seeking compensation for damages suffered by his home due to work carried out on the neighboring property. The Court of Appeal of Naples, with ruling No. 1719/2021, had rejected A.A.'s appeal, which contested the validity of the construction contract for alleged violation of urban planning regulations. This led A.A. to appeal to the Supreme Court.

The Court established that the nullity of the construction contract cannot be automatically declared in the absence of a building permit, unless it is proven that there has been a violation of imperative rules.

The Decisions of the Supreme Court

The Supreme Court declared A.A.'s appeal inadmissible, highlighting that the territorial Court had correctly applied established legal principles. It is important to note that, according to the ruling, the absence of a building permit does not automatically imply the nullity of the construction contract, but must be evaluated on a case-by-case basis. In particular, the Court referred to Article 1421 of the Civil Code, which allows the nullity to be asserted at any time and by anyone.

  • Nullity is established only in the case of illegal construction, where the building permit is completely absent.
  • Liability for damages suffered by third parties can only be attributed in cases of culpa in eligendo, that is, when the work is entrusted to an unsuitable party.
  • The technical consultancy played a crucial role in assessing the nature of the work and its compliance with current regulations.

Conclusions

The ruling No. 36399 of the Supreme Court provides significant insights for understanding the regulation of construction contracts and the associated responsibilities. Professionals and companies must pay attention to the regularity of building permits and the methods of executing work to avoid legal issues. Jurisprudence continues to evolve, and cases like this underscore the importance of adequate legal advice in the construction field.

Bianucci Law Firm