By order No.. 15303 of the 05.06.2019, VI of the Civil Court of Cassation, in answer to the request by a lawyer once you get the compensation accrued for the activity conducted in two courts, It upheld the objection of presumptive prescription raised by the defendant, denying that the raised exception implied recognition of debt.
It is therefore specified that the exception of presumptive requirement does not imply the recognition of debt, since the provisions of Article. 2959 c.c. It must be understood in the sense that the admission of the fact entails the exception rejection, but not, Unlike, that raising the prescription except determine the admission of giving rise to a debt.
The case brought to the attention of the Supreme Court starts with a request for a professional aimed at enforcing payment of accrued compensation, against a customer, for activities carried out in the two degrees of a civil judgment; the client, on the merits, He stated that it had received no letter and / or registered interrupting the prescription and, therefore, it observed that the statute of limitations of professional credit.
The Court of Bologna, brought proceedings under Article. 702 c.p.c., rejected the application of advanced payment by the legal, accepting the exception of presumptive prescription raised by the defendant.
The legal, resorting to the Supreme Court, complained that the contested decision for infringement and misapplication of Article. 2959 c.c. and art. 115 c.p.c. complaining prescription exception of accepting presumptive.
According to him, except the prescription was rejected as the counterparty, affirming that he had received the recommended, had not disputed - even implicitly - the content implicitly admitting the validity of the payment claim asserted; based on time, He alleged that the absence of a dispute concerning the allegations of the creditor indirectly proved the merits of the claims and had to be seen as implicit admission of the existence of credit. In conclusion, the lawyer pointed out that the absence of objection had to prevail on the presumption of payment, because the defendant had never stated that they had extinguished the obligation.
The Supreme Court did not agree with the applicant's complaints, It specified that the presumptive prescription is based not on the inertia of the creditor and the passage of time – how it happens, the usual, in ordinary prescription – but on the presumption that, given the nature of obligation and uses, the payment was made within the period prescribed.
Consequently Article. 2959 c.c. states that the prescription exception must be rejected if the debtor admits he does not get paid; on this trail, jurisprudence is unanimous in considering that the plea of prescription presumptive is incompatible with any of the debtor's conduct that amounts, implicitly, admitting in court that the obligation is not extinguished: This situation also occurs when the debtor denies the existence of the object credit demand that is claimed that the debt has not risen, behaving that dispute the implicit admission that the obligation was not extinguished as it is no payment has been made.
However, different is the case with the exception of prescription: such an eventuality, or in Law or equivalent, It does not imply the recognition of debt, since the provisions of Article. 2959 c.c. It must be understood in the sense that the admission of the fact entails the exception rejection, but not, Unlike, that raising the prescription except determine the admission of giving rise to a debt.
On the verge, the Supreme Court stated that the defendant, having raised the exception of prescription, He had admitted giving rise to a debt, because the reference to the letters had been operated by the customer for the sole purpose of excluding the suitability to stop prescribing, without taking sides or the merits of their content.
It follows that the judgment under appeal, It founded in considering the objection of limitation presumptive, It has complied with the principle according to which the exception of prescription does not determine the admission of the fact constituting the debt and therefore does not amount to recognition of the debt, given that the defendant had formulated the objection of limitation without considering the merits and without admitting that the obligation had not been extinguished.
In conclusion, the Court rejects the appeal and order the appellant to pay the costs of the assessment of the lawfulness and the further sum as a unified contribution equal to that due to the same appeal.