REVOCATORY ACTION FOR ACTS PRIOR TO THE CREDIT: SPECIFIC INTENT OF THE DEBTOR

What type of intent must be attributed to the debtor in order to obtain a declaration of ineffectiveness of acts performed prior to the emergence of the credit under Article 2901 of the Italian Civil Code?This question was answered by the Joint Sections of the Supreme Court in Judgment No. 1898 of 27 January 2025, putting an end to the existing jurisprudential divergence on the matter.

It was established that, in the context of a revocatory action whereby the creditor challenges a dispositive act carried out before the credit arose, the fraudulent preordination required by the law cannot be constituted by mere generic intent (i.e., mere awareness of the detriment). Instead, specific intent is necessary, meaning that the debtor must have performed the act with the precise aim of a future assumption of debt, intending to hinder or render uncertain the satisfaction of creditor claims.

The article under examination governs the revocatory action, a legal tool available to the creditor to obtain judicial declarations rendering ineffective, in relation to the creditor, any acts of asset disposal through which the debtor prejudices the creditor’s ability to recover the debt. The issuance of such a ruling is, however, subject to the presence of two conditions:

1. The debtor’s awareness of the detriment caused and, in the case of a prior act, the fraudulent preordination aimed at causing such detriment;

2. In the case of acts for consideration, the third party’s awareness of the detriment or, in the case of prior acts, their participation in the fraudulent preordination.

More specifically, the Supreme Court was called upon to determine the subjective element necessary for the acceptance of a revocatory action when the act being challenged precedes the emergence of the credit. On this matter, two divergent jurisprudential positions exist regarding the interpretation of the so-called consilium fraudis.The first position differentiates the subjective element to be attributed to the debtor depending on whether the act occurred after or before the credit arose. For the former, it is deemed sufficient to refer to generic intent, meaning that it suffices for both the debtor and the third party to be aware of the prejudice caused to the creditor by the transaction. For the latter, however, specific intent is required, meaning an intentional preordination by the debtor aimed at sabotaging the fulfillment of a debt that they anticipate incurring in the future or at carrying out an act specifically designed for the subsequent contraction of such debt. Additionally, the third-party acquirer must be aware both of the fraudulent preordination of the act and of the credit for which the action is brought (which is not required for subsequent acts, where mere awareness of the debtor’s asset reduction suffices).

Conversely, according to a more recent interpretative approach, even when the acts being challenged precede the credit, it is sufficient for the revocatory action that the debtor simply knew or foresaw the damage caused to the creditor. Under this view, the essential requirement would be that the debtor is aware of creating a risk of asset insufficiency as a guarantee for creditors, and nothing more.Regarding the substance of the ruling of the Joint Sections, the Court arrived at its conclusion by starting from the literal meaning of the norm itself.

In fact, in setting out the conditions for obtaining a declaration of ineffectiveness, the law employs different wording, distinguishing between subsequent and prior acts, a distinction that would lose all significance if the second interpretation were accepted.

Consequently, differentiating the subjective element logically follows from the terminological distinction between the verb to know (to be aware of) and the noun preordination (the preparation of means to achieve a result).Therefore, from the very text of Article 2901, paragraph one, of the italian Civil Code, it is unequivocally clear that, as regards the subjective prerequisite, something more is required for acts prior to the credit, namely, the debtor’s will and intent to harm the creditor.

Moreover, it is precisely this additional element, which must characterize the debtor’s conduct, that justifies and supports the revocatory action itself. In relation to acts preceding the emergence of the credit, this action constitutes an exception to the general principle that the debtor is liable for debts contracted with their present and future assets, but not with those of which they were no longer the owner at the time the credit arose.

In conclusion, the Joint Sections resolved the jurisprudential conflict regarding the revocatory action for acts preceding the credit, ruling that, in order to obtain a declaration of ineffectiveness under Article 2901 of the italian Civil Code, the subjective element attributable to the debtor must be considered in different ways: the so-called generic intent for acts subsequent to the credit and the so-called specific intent for prior acts, understood as the intentional modification of their asset composition by carrying out transactions aimed at making it difficult or uncertain to satisfy the future credit.

Authors: Avv. Daniela Di Palma and Federica Fanesi