Nullity (right)

Article

November 28, 2021

Nullity is the strongest remedy that the legal system offers to sanction the invalidity of a legal act. The institution must be distinguished from the doctrinal category of non-existence as the legal act is declared null following an eminently normative evaluation while it is declared non-existent if, like typical social evaluations, the legal act cannot be considered as such.

Civil law

Assumptions

The art. 1418 of the Civil Code, entitled "Causes of nullity of the contract", identifies in its three paragraphs the cases of nullity of the contract. As regards unilateral acts, art. 1324 of the Italian Civil Code extends, where compatible, the contractual regulations. The cases are: opposition to mandatory rules: this term refers to the non-derogable (non-dispositive) rules of the private will. lack of an essential requirement pursuant to art. 1325: the total lack of consent, of the cause, of the object (or of its requirements pursuant to art. 1346) or the lack of the form where provided for under penalty of nullity. illegality of the cause (articles 1343-44) or of the reasons (article 1345): in the case of the illegality of the reason, this must be common to the parties, unique and decisive. other cases established by law (special nullity).

Discipline

The action for nullity can be exercised by anyone who has an interest in it (see Article 100 of the Italian Code of Civil Procedure) or can also be detected ex officio by the judge. Particular are then some categories of invalidity, such as protection invalidity. The action is inalienable. It is also traditionally considered an atypical remedy, in the sense that its prerequisites for acting are extremely broad: the violation of imperative rules, for example, allows it to be modeled on numerous situations that are very different from each other, and the same thing could be said for an illicit contract for contrary to public order or morality (rectius with cause contrary to public order or morality). The art. 1419 allows, in compliance with the principle of conservation of the contract, to limit the declaration of nullity to single clauses (partial nullity) unless these are to be considered essential in the interest of the parties. The second paragraph provides for a further hypothesis of partial nullity: the substitution by law of clauses that violate mandatory rules. In the case of plurilateral contracts, the nullity affecting the bond of a single party does not overwhelm the entire transaction unless the participation of the party must, in the specific case, be considered essential. This rule is to be considered a general principle regarding the invalidity of plurilateral contracts. The legal system generally prohibits the validation of the null transaction, but allows a particular form of amnesty in specific cases (e.g. will art.590 of the civil code and donation art.799). The null contract can produce the effects of a different contract if the substance and form requirements are met and if the parties have an interest in maintaining the constraint thus reduced (conversion of the null contract).

Effects

The nullity action is an action of mere assessment, that is, with it the judge is asked to declare the ineffectiveness of the negotiating act (quod nullum est nullum producit effectum). Declared nullity, any services performed remain without any causal justification and must be returned in accordance with the discipline of repayment of the wrongdoing (articles 2033,2037 of the Italian Civil Code)

The prescription of the repetition action, the so-called acquisitive prescription, the transcript of the third party buyer

However, this rule must be coordinated with the provisions of art. 1422 of the Italian Civil Code that in sanctioning the imprescriptibility of the nullity action without prejudice to the effects of the usucapione and the prescription of the repetition action, as well as the remedying effect of the registration for the third buyer (pursuant to art.

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