The facts:

  • six years after the purchase of a property, the seller brought a claim against the buyer claiming for the avoidance of the contract due to fraud;
  • the buyer raises the exception of the 5-year limitation period (pursuant to art. 1442 c.c.);
  • the Court gives reason to the buyer but it rejects the exception regarding the limitation period;
  • the seller lodges an appeal;
  • in the appeal judgement, the buyer – despite his exception regarding the limitation period has been rejected at first instance – does not lodge a cross-appeal on the topic pursuant to art. 342 c.p.c. but just merely re-submit the exception pursuant to art. 346 c.p.c.;
  • the Court of Appeal uphold the exception regarding the limitation period re-submitted by the buyer and reject the appeal of the seller;
  • the seller lodges an appeal before the Supreme Court assuming that the Court of Appeal was not allowed to examine the exception re-submitted by the buyer, as he should have lodged a cross-appeal on the matter.

Hence the question: when the defendant won at first instance but lose as per an exception on the merits, is he entitled to merely re-submit the exception pursuant to art. 346 c.p.c.? Or is he supposed to lodge the cross-appeal pursuant to art. 342 c.p.c.?

As it is “of particular relevance” the question is answered by the Joint Sections of the Supreme Court, which opt for the latter solution.

The basis of the answer lays, essentially, on the principle of adverse outcome: indeed, the defendant – despite he won as per the final outcome of the proceedings – lose as per the rejected exception and, thus, is obliged to lodge a cross-appeal on it, likewise the loosing claimant who is supposed to lodge the principal appeal on the rest of the judgement.

Moreover, the Joint Sections state that the defendant is not obliged to lodge the cross-appeal in all the occasions in which his exception has not been upheld. Indeed, it is necessary to distinguish:

  • on the one hand, the cases in which the exception has not been upheld as it has been rejected;
  • on the other hand, the cases in which the exception has not been upheld as the judge did not deal with it.

In fact, in the former case the winning defendant is obliged to lodge the cross-appeal, whereas in the latter he has the possibility to merely re-submit the exception.

How to distinguish, concretely, the former hypothesis from the latter? The Joint Sections clarify that the exception should be considered rejected (with the consequent obligation of the cross-appeal) when in the motivation of the judgement there is an express statement by the judge of first instance regarding the groundlessness of the exception or when – even if there is not such an express statement – there is an indirect statement from which one can clearly and unambiguously understand that the first instance judge took it for groundless.

Moreover, the Joint Sections’ judgement answer two important questions.

  1. As the winning defendant is obliged to lodge a cross-appeal when his exception has been rejected (even indirectly), is he obliged to lodge that cross-appeal even when the exception could be raised ex officio by the judge? The answer is affirmative, as – without a punctual appeal – the principle of res iudicata would apply pursuant to art. 329, p. 2°, c.p.c. In fact, it is true that – dealing with those exceptions which might be raised ex officio by the judge – the judge has the power, in principle, to raise them ex officio but it is also true that this power has a limit in the principle of res iudicata on the matter.
  2. When the exception is not rejected but the judge simply did not uphold it as he did not deal with it and, thus, it is possible to merely re-submit the exception, what if the exception is neither object of a cross-appeal nor of a mere re-submission? The answer is that the exception is considered renounced pursuant to art. 346 c.p.c., but – if it is an exception which might be raised ex officio by the judge – the judge can raise it ex officio (pursuant to art. 345, p. 2°, c.p.c.).

Here is a possible scheme, useful as a guideline of the Joint Section’s judgement: