In the Italian legal system the form is one of the essential elements of the contract when it is prescribed by law on pain of nullity (Art. 1325 of the Civil Code).
This means that, in contrast to a general principle of freedom of choice of form, there are cases in which the agreement’s draft takes on particular legal significance because of the protection of certain interests.
What is the form prescribed by law for contracts disposing of rights in real estate?
Let us look in detail at these forms.
CONTRACTS RELATING TO RIGHTS IN IMMOVABLE PROPERTY
When the contract relates to rights in real estate, the law always requires the written form in the guise of a public deed or private deed.
Art. 1350 of the Civil Code lists the acts relating to rights in real estate which must be drawn up in writing on pain of nullity (for failure to comply with the form):
1) contracts transferring ownership of real estate;
2) contracts constituting, modifying or transferring the right of usufruct over real estate, the right of superficies, the right of the grantor and the emphyteuta;
3) contracts constituting the community of rights referred to above;
4) contracts constituting or modifying servitudes of title, rights of use over real estate and rights of habitation;
5) deeds of renunciation of the above rights;
6) contracts for the enfranchisement of emphyteutical property;
7) anticresi’s contracts;
8) contracts of lease of real estate for a duration of more than nine years;
9) contracts of partnership or association by which the enjoyment of real estate or other rights in rem is conferred for a period exceeding nine years or for an indefinite period;
10) deeds of division of real estate and other rights in rem in real estate;
11) settlements relating to disputes concerning the legal relationships mentioned in the preceding numbers.
A private instrument shall constitute full proof, up to a complaint of forgery, of the provenance of the declarations made by the person who signed it, if the person against whom the instrument is produced recognises his signature, or if it is legally considered as recognised.
THE PUBLIC DEED AND THE AUTHENTICATED PRIVATE CONTRACT
Alongside the (simple) private deed, there are two other forms of drawing up the deed:
a) public deed (arts. 2699-2701 Civil Code)
The public deed is the one that is drawn up in its entirety, and not simply signed, in the presence of the notary as a public official.
Since it is the notary who prepares the deed, the form of the public deed offers greater protection to the parties in terms of determining its content and the professional responsibility of the public official who drew it up.
The public deed provides full proof, up to a claim of forgery, of the provenance of the document from the public official who drew it up, as well as of the declarations of the parties and the other facts that the public official attests as having taken place in his presence or by him.
b) Authenticated private contract (arts. 2702-2704 Civil Code)
Authentication consists in the certification, by a notary or other public official, that the signing took place in his presence after verification of the identity of the parties; authentication also certifies the date on which the deed was concluded.
The authentication also certifies the date on which the deed was concluded.
With the authenticated private contract the agreement acquires the effectiveness of legal proof as regards the origin of the declarations contained therein and the certainty of the date.
THE CONTRACT’S FORM IN THE CASE OF REAL ESTATE UNDER CONSTRUCTION
If the transaction relates to real estate under construction, the law requires the conclusion by public deed or authenticated private deed (legislative decree 122/2005) when the building permit was issued after 16 March 2019.
In this case, the law requires the observance of special forms to meet two requirements:
* make the parties responsible with respect to the bond established with the signing of the signed agreement;
* to give an account of the rights and obligations arising from the contract and the resulting balance of interests.
In addition to the form ad substantiam, the indication in the deed of the details of the surety (obligation of the builder) and the certification of compliance with the standard model approved by decree of the Minister of Justice is required.
In the absence of the aforementioned requirements, the contract is affected by absolute nullity, which can be detected ex officio by the judge.
In contracts disposing of rights in real estate the written form is an essential element of the agreement.
This means that, except in special cases where the law requires a specific form (buildings under construction), the agreement is valid and capable of producing effects between the parties if it is in writing, regardless of the specific form it takes.
When the deed is drawn up by a notary, certainly offers greater guarantees in terms of the agreement's conformity with the law and in terms of the public official's professional liability.
