With the notable No judgment. 22404 of the 2018 the United Sections of the Supreme Court have solved a sensitive issue especially important procedural admissibility of the conversion of a contractual nature in that - assuming a different title and plays subsidiary - of unjustified enrichment, emphasis to the positive solution, thus continuing in the path of overcoming the traditional distinction between "Change" ed "Improved Stickers"Said decisively by the same sections combined with the previous sentence no. 12310 of the 2015.
Historically, the case-law contrasts with respect to that question is essentially concerned two pronunciations, of opposite sign, and in particular the United Sections n. 14646, of the 23.06.2009, and the United Sections. n. 26128 of the 27.12.2010.
THE SOLUTION:
It is accepted, applications for unjust enrichment, proposed in the alternative to the first memory in accordance with Article. 183, 6° co, c.p.c., in the process introduced with demand for contract execution, if it refers to the same substantive matter of the obligation in, these are questions still connected (incompatibility) that initially formulated.
THE CONCRETE EACH OTHER PROCEEDINGS CAPACITY EXAMINATION OF THE UNITED SECTIONS:
An engineer commenced proceedings a municipal entity asking him to pay the fee for the completion of an assignment of a public work design.
The City agreed pleaded the invalidity of the assignment and resolution, because of the adoption of this defensive strategy, the actor, within the prescribed period for the memory storage referred to in Article. 183, comma 6, n. 1) c.p.c., He proposed, although in the alternative to the rejection of that formulated in the main street "ab origin", demand for compensation for unjust enrichment in order to professional performance still occur.
The court hearing, ascertained the breach of the City patron, welcomed the advanced payment application initially by the professional.
Senonché, following the appeal brought by the unsuccessful Municipality, the Territorial Court reversed the order of the court of first instance and, prior declaration of invalidity of the assignment decision attributed all'appellato, rejecting the application for payment and, Moreover, He declared the inadmissibility of that later made of unjust enrichment by describing it as "new".
The heirs dell'appellato (pending deceased) They appealed to the Supreme Court the ruling of second degree deducting two reasons: the first of which relative to the refutation of withholding inexistence of the validity requirements of the technical assignment of positions and the second resolution concerning the declared unacceptability of the subordinate question of undue enrichment.
The MAKING THE ORDER AND THE QUESTION OF LAW:
By interlocutory order of the 20 March 2017 the Second Section, partly as a result of the new course of the Court's legitimacy with respect to the attenuation of the difference between "Change" ed "Correcting" the court questions, It noted the emergence of a matter of the highest of particular importance with reference to the possible assessment of eligibility of the modification of the application in that fulfillment of undue enrichment provided that proposal within the period exclusionary last for the final structure of the original application, as provided by. 183, comma 6, n. 1), c.p.c.
THE DECISION:
Goal First President the question to Pat, these have solved the same in the sense of the admissibility of the identified modification, on the assumption that the next proposition of an application for undue enrichment - provided that it is the obligation in question within the aforementioned term - does not integrate the extremes of a new application, since, however, connected with that initially advanced.
To achieve this outcome the Joint Sections have enhanced the latest address of case law already marked by the same Joint Sections that the modification of the permissible application under Article. 183 c.p.c. It may also relate to one or both of the objective elements of the same (“requested” e “grounds”), provided that the application as amended is in any case connected to each other substantial obligation in question, and without, for that reason alone, It must determine the impairment of the defensive power of party, ie the elongation of the procedural time.
In particular, Judgment No. 12310 of the 2015 - on which it is based essentially one here being examined, giving continuity to it - it was determined that, thus interpreted, the amended application would have been eligible if it had still covered substantially the same each other with the obligation in the application or otherwise be connected thereto or placed in alternative. In this sense, it was added that there was a risk of a delay time trial, since the amended application replaces the initial application and may not be combined with it, It intervenes in the initial phase of judgment and does not entail longer times to those already budgeted by the aforementioned article. 183 c.p.c.
Neither could have been expected that such an interpretation would "surprise" the other party or mortify the defensive potential because "any change always takes place in connection to the same reference and each other substantially in relation to which the part has been sued, specifying that the part should be aware that such an amendment could intervene, so that is not located with respect thereto as before the initial application” e, finally, “the said part is in each case assigned a reasonable period of time to defend himself and also in terms of evidence controdedurre”.
Conforming to these principles the United Sections - Judgment No. 22404 of the 2018 – They have reconfirmed that the previous results achieved were placed in complete consonance with either the need to achieve, in order to greater procedural efficiency and better substantive justice, the concentration in the same process and before the same court of disputes concerning the same substantial affair, both, more generally, with functional values of the process as progressively enucleated, in more recent times, by doctrine and case law - particularly the United Sections - legitimacy.
Consequently, with the newly recalled Decision, the Joint Sections felt that - in this case subjected to their scrutiny - both questions formulated by the professional (that of contractual performance and the next, but subject to timely change, of undue enrichment) They speak to, in effect, the same each other contractual proposed and are oriented to the achievement of the same goal, or the achievement of the same substantial fine, identificantesi with the satisfaction of a claim involving the assets in relation to which the two proposed questions are to be considered related to a connection "report for incompatibility" both logical rules, because the unjust enrichment action plays subsidiary and, therefore, precisely this nexus corroborates still more strongly the need to resort to a contextual and simultaneous judgment.
Therefore, and S.U. They have rejected the first plea of the appeal but have upheld the second in relation to the detected eligibility of the subordinate question of undue enrichment however deduced in term exclusionary provisions of the procedural code for the clarification and the modifications of the initial application, the resulting Cassation with postponement of the judgment under appeal.