THE PAYMENT OF RENTAL FEES MADE SOLELY TO AVOID EVICTION FOR NON-PAYMENT DOES NOT CONSTITUTE ACKNOWLEDGMENT OF DEBT UNDER ARTICLE 1988 OF THE ITALIAN CIVIL CODE.

The acknowledgment of debt, governed by Article 1988 of the Italian Civil Code, is a unilateral juridical act with a receptive nature, whereby one party recognizes the existence of a specific obligation owed to another.

The primary effect of the acknowledgment of debt is to shift the burden of proof, as it relieves the creditor from the obligation to prove the underlying relationship, which is presumed to exist unless evidence to the contrary is provided, according to the principle of relevatio ab onere probandi. In other words, it is not the creditor who must prove the existence of the obligation, but rather the debtor who must demonstrate either the absence of the debt or its extinguishment, presenting appropriate evidence to support their claim.

The effects produced by the legal mechanism of acknowledgment of debt, like those of a promise to pay, are exclusively procedural in nature and not substantive, as they do not create new credit relationships but only concern pre-existing ones.

Furthermore, according to the consolidated case law of the Supreme Court of Cassation, the acknowledgment of debt, unlike other contractual instruments, does not require specific formalities or an explicit intention to acknowledge the debt by the declarant. It may even result from implicit behavior, as long as such behavior demonstrates an awareness of the existence of the debt and, crucially, the element of “voluntariness.” Thus, it is sufficient that the specific act of acknowledgment expresses, even indirectly, awareness of the existence of the debtor's position, provided that it arises from a free, conscious, and uncoerced will. A mere payment or an informal declaration may, in certain circumstances, constitute an acknowledgment of debt if, from the specific circumstances of the case, the element of voluntariness clearly emerges.

In its Order No. 22948 of 2024, the Third Section of the Supreme Court of Cassation upheld these principles, emphasizing the relevance of the subjective elements of intentionality and awareness in relation to the act of acknowledgment.

Ruling on a dispute concerning lease agreements, the Court held that payments made by the tenant to the landlord solely to avoid validation of eviction for non-payment could not constitute an acknowledgment of debt under Article 1988 of the Civil Code, as the intention to acknowledge the existence and amount of the debt was absent in such cases.

In the case analyzed by the Court, the tenant's need to avoid the risk of a much worse consequence (eviction) prompted the payment of rent, without such payment implying a conscious admission of the debt’s existence, given the different purpose pursued. While it is true that acknowledgment of debt does not require specific formulas or formalities, it is nonetheless necessary, for its applicability, that it can be attributed to an act knowingly voluntary and unequivocally aimed at confirming the existence of the obligation with awareness.

From the Court's perspective, the conclusion that the voluntariness of the payment was not intended to acknowledge the existence and amount of the debts but rather to avoid eviction for non-payment was further supported by the fact that, during the opposition to the validation judgment, two court-appointed technical expert assessments were carried out to determine the financial relationships between the parties, demonstrating that the credit was not acknowledged but, on the contrary, appropriately contested.

Authors: Avv. Gianfilippo Chiricozzi and Sofia De Paolis