GPD with Atty. Prof. Andrea Gemma and the collaboration of Atty. Domenico Massimo Vetere wins in the Court of Appeal in Florence, obtaining the complete rejection of the opposing appeal.

The ruling proves to be of particular legal interest as it addresses the issue of non-performance by the third party mortgagee, and on this point the Court of Appeal observed that “one thing is the right to mortgage, another is the registration of the mortgage. If it is true that, pursuant to art. 2808, second paragraph, of the Civil Code, the mortgage is constituted by registration in the real property registers – and this because the essential effects of the mortgage manifest themselves vis-à-vis third parties, and vis-à-vis third parties it is effective only after registration – this does not mean that the right does not exist before registration, which cannot occur without a title” and further that “the right to register a mortgage, and therefore the title to proceed with registration, had already been constituted” in favor of the lending party and the agreement “is to be interpreted not as a preliminary agreement for the constitution of a mortgage but as a true and proper constitutive act of the right to mortgage“. It is also noteworthy that the Court of Appeal found a lack of proof of the alleged non-performance constituting the claimed damage and of the causal nexus between non-performance and the claimed damage, taking into account the fact that the third party mortgagee is unrelated to the financing relationship.