Notification of legal claim to a foreign defendant
In the recent ruling of January 31, 2019, n. 2966 the Supreme Court clarifies that the notification of acts of a procedural impulse, carried out against a foreign citizen, must follow the procedures set out in art. 142 of the Italian Civil Procedure Code, if the foreign origin of the addressee is evident from the documentation in the possession of the addresser.
The case originates from the request for usucapion, partially accepted by the court of first instance in the defendant’s absence, who appealed to the Supreme Court, arguing the nullity of the sentence for failure to notify the defendant of the legal claim in the forms provided for by the art. 142 of the Italian Civil Procedure Code instead of those of art. 143, as the defendant is an American citizen and, therefore, a person to whom the provision of the art. 142 of the Italian Civil Procedure Code, concerning the “notification to a person non-resident nor domiciled in the territory of the Republic” should apply , and not the provision of the art. 143, which foresees the “notification to a person with unknown residence and domicile”.
The Supreme Court denotes that from the very same documentation in possession of the plaintiff and concerning the property object of the alleged usucapion, appears the indication as owner of a person with tax code in which the code “Z” indicates the foreign origin of the letter. According to the Supreme Court, in the presence of such information about the foreign origin of the addressee, should be considered a part of ordinary diligence, an investigation activity proper with the available information and which should have been held at the consulate office of reference for the verification of new residence of the addressee.
On the other hand, the research carried out by the addresser at the national registry office, devoid of any subjective correlation with the foreign addressee, thus deprived of the actual possibility of knowing the legal claim, does not appear to be able for fulfilling the minimum of diligence required.
