Through judgement no. 6093, issued on 5 June 2012, the Court of Cassation intervened to clarify certain legal problems underlying the relation existing between the preliminary contract and the final contract.

More specifically, the Supreme Court, having been asked to issue a ruling on a case of future sale of real estate, carried out an analysis to establish whether the preliminary contract only produces the reciprocal obligation of the parties to enter into the final contract, the provisions of which might not conform with those agreed between the parties in the preliminary contract, or whether, conversely, it continues to be the sole source of contractual rights and obligations between the parties.

In the case examined by the Court, two parties had entered into a preliminary contract the subject of which was the future sale of land with annexed building. The final contract subsequently entered into by the same parties did not contain any reference to a specific parcel which had, conversely, characterised the subject of the preliminary contract.

The heirs of the promissory seller instigated legal proceedings, requesting the Court to ascertain and declare the intervening purchase, in their favour, of the ulterior parcel which, although indicated in the preliminary contract, had not then been inserted in the final contract. The promissory purchasers entered an appearance, disputing the requests of the plaintiff on the grounds that the parties had intentionally agreed a different contractual structure for their relations with reference to the subject of the contract initially recorded in the preliminary contract. At the end of the first instance proceedings, the Court accepted the plaintiff’s claims. Subsequently, both the Court of Appeal and the Court of Cassation rejected the claims formulated by the plaintiff, decreeing the prevalence of the provisions of the final contract over those contained in the preliminary contract.

The Court of Cassation therefore decreed that the final contract represents the sole source of the rights and obligations inherent to the intended transaction, and not a mere repetition of the preceding contract, since the preliminary contract, producing only the reciprocal obligation of the parties to enter into the final contract, is superseded by the latter.

The Court clarified that the provisions of the final contract may even not conform with those of the preliminary contract, unless the parties have expressly specified that the preliminary contract survives.

Finally, the Court of Cassation also clarified that, where not specified in the final contract, in the case in which the subject of the same is real estate, the evidence of an agreement made by the parties simultaneously with the signature of the final contract, which should state that other obligations or services contained in the preliminary contract survive the final contract, must be in the form of a written deed.

The opinion outlined above comes within a consolidated school of case law (Cassation nos. 15585/2007, 11262/2003, 2824/2003, 5635/2002 and 4354/1998) and legal theory founded on the principle of the absorption of the preliminary contract. According to this position, a dual purpose exists within the final contract: that of fulfilling the obligations deriving from the preliminary contract and the contractual purpose aimed at setting up the final contract as a deed of independent negotiation between the parties designed to produce the purchase and transfer of the right contemplated within it.

The minority school of the opposite opinion, founded on the principle of the intangibility of the preliminary contract, has its sole precedent in Court of Cassation ruling no. 8486/1987.

The arguments upheld by the Court of Cassation in judgement no. 6093/12 express the intention of case law to preserve the legal principle of the private autonomy of the parties. In support of the above, the Court of Cassation has noted that, in the case of adherence to the minority position, the final contract would represent a mere repetition of the preliminary, with inevitable injury to the fundamental principle of the private autonomy of the parties. Moreover, attributing to the final contract the qualification of an autonomous agreement also makes it possible to overcome and consider as irrelevant any errors that may have affected the preliminary contract.

Therefore, by virtue of the interpretation delineated by the Court, the final contract must be construed as constituting the contractual source of the obligations undertaken by the parties.