for non-payment of a business lease?
With an order dated 20 December 2023, the Court of Naples asked the Court of Cassation to establish whether an eviction order can be issued against the tenant of a business for non-payment of rent, pursuant to art. 658 of the Code of Civil Procedure.
In particular, the Court noted that, according to the provisions of the delegation law no. 206/2021, and the report to the related implementing decree no. 149/2022 (the so-called Cartabia Reform), the eviction procedure for non-payment should have also been extended to business rental contracts.
However, the legislator has expressly extended to such contracts only the possibility of obtaining, before the expiry of the contract, the order of release due to termination of the lease, pursuant to art. 657 of the Code of Civil Procedure.
In this regard, the Court of Naples noted that two interpretations are possible.
According to a first interpretation, the eviction order for non-payment is not applicable to business rental contracts, because such contracts are not expressly contemplated by art. 658 of the Code of Civil Procedure, and art. 658 of the Code of Civil Procedure constitutes an exceptional rule, not applicable by analogy. According to a second interpretation, art. 658 of the Code of Civil Procedure would apply to all contractual relationships indicated in art. 657 of the Code of Civil Procedure, to which the Cartabia reform added business rental contracts. Therefore, the Court, in application of art. 363bis of the Code of Civil Procedure, also introduced by the Cartabia Reform, ordered the preliminary reference of the documents to the Court of Cassation, so that it can resolve the legal question under examination.
By order of 13 February 2024, the First President of the Court of Cassation found that the conditions for the resolution of the issue by the Court of Cassation existed pursuant to art. 363bis of the Code of Civil Procedure, since the issue: (i) is necessary for the definition of the judgment before the Court; (ii) is likely to arise in numerous judgments; (iii) presents serious interpretative difficulties.
Therefore, the First President declared admissible the preliminary reference raised by the Court of Naples, and assigned the question to the Third Section of the Court of Cassation, so that it can pronounce the principle of applicable law. In the meantime, the Government approved a draft legislative decree, which provides that art. 658 of the Code of Civil Procedure be amended, expressly including the tenant of a business among the subjects against whom an eviction order for non-payment can be issued.
Author
