The Italian Supreme Court, with its judgment no. 52/12, has once again dealt with the question of whether or not agreements for the assignment of rights to damages for losses caused by road accidents are valid pursuant to article 1260 of the Italian Civil Code.
In the case at hand, the court of second instance ruled that such rights could not be assigned (thus also having a negative impact on the assignor’s right to obtain remedies in court protecting such rights).
In particular, the court of second instance rejected the plaintiff’s action since it was of the opinion the rights in question could only be ascertained in the future and were uncertain in their extent.
The judge of second instance also ruled that the existence of such rights was conditional upon the judge ascertaining who was liable for the losses caused by the accident in question and quantifying the amount of damages owed in connection therewith.
The Supreme Court reached, instead, a different and opposite conclusion, and namely that: the right to be awarded damages as a result of losses caused by a road accident can be assigned pursuant to article 1260 and ff. of the Italian Civil Code and the assignee may, on the basis of the assignment agreement, claim damages from the defendant (cfr., in this sense, Italian Supreme Court judgment no. 11095 dated May 13, 2009; Italian Supreme Court no. 21192 dated May 11, 2004, as well as Italian Supreme Court judgment no. 2812 dated April 21, 1986).
The Supreme Court pointed out that article 1260 of the Italian Civil Code forbids assignments of rights which are strictly personal or assignments which are prohibited by law.
In the light of the fact that the law does not specifically prohibit the assignment of rights to damages for losses caused by road accidents and of the fact that such rights are not strictly personal, the Court held the assignment thereof to be perfectly lawful since it would, in any case, be valid in the event that it was accepted by the defendant against whom it was to be exercised or notice thereof was served upon the latter (as provided for under article 1264 c.c.).
The Supreme Court was of the opinion that, in the case at hand, such assignment could not be held, to be without effect (as the court of second instance had instead held, ruling that the assigned right’s existence was uncertain since it would only be ascertained in the future).
The Court was of the opinion that the ruling of the judge of second instance did not take into account the fact that the activities conducted by the court during the course of the proceedings (with a view to ascertaining who was liable for the losses caused by the road accident and to quantifying the damages owed as a result thereof) did not affect in any manner whatsoever the right to damages – which arose in the very same instance in which the accident occurred – or the assignment thereof, but only on the fact that the assignor was definitively freed in the event that the right was assigned with recourse (as was the case here).
The Supreme Court judges ruled, in the case at hand, that the rights had been assigned for consideration, with the result that the assignor was obliged to guarantee – pursuant to article 1266 of the Italian Civil Code – the existence of the right in question when it was assigned
The Court held that a ruling on the non-existence or nullity of the right to damages does not produce any effect vis-à-vis the validity of an assignment (nor does the non-existence of a right normally lead to a contract being held to be null and void), but leads solely to a ruling to the effect that the assignee is not entitled to the purported right which has been assigned to the latter (with the result that the assignor may be held to be in breach of contract and ordered to pay damages to the assignee).
The Italian Supreme Court held, moreover, that the rights to damages for losses caused by tortious activity was an actual right (cfr.. Italian Supreme Court judgment no. 21192/04, which ruled that the accrual of interest runs from the date in which the tort was committed and not from the date when the damages were awarded).
The Court held that – in the light of the above and of the fact that the right to damages for losses caused by road accidents may be assigned – the assignee could bring, pursuant to article 1263 of the Italian Civil Code (according to which the right in question is assigned not only together with the related privileges and personal guarantees, but above all with the other ancillary rights) an action against the defendant insurance company.
