The contribution prepared by Avv. Niccolò Medica and Dott. Niccolò Ballerini was published in N&T Plus Diritto – Il Sole 24Ore.

The Court of Cassation, with judgment no. 662 of January 11, 2022, addressed the issue of the failure to reproduce a clause contained in a preliminary contract for the transfer of corporate shares in the subsequent final contract.
In the case examined by the court of last resort, in the preliminary contract the parties provided, in addition to the subsequent transfer of all shares of the capital stock of a company, also further ancillary obligations, among which was also included a non-compete clause, the violation of which would have resulted in the payment of a penalty by the defaulting party.
The parties subsequently executed the final contract, by which the transfer of corporate shares was regulated. All ancillary obligations provided for in the preliminary contract were transcribed in the final contract or in separate deeds from the notarial deed, with the sole exception of the non-compete clause (and related penalty), which was no longer mentioned.
A judicial dispute thus arose between the parties, in the course of which the condemnation of the subjects against whom an alleged violation of the non-compete clause provided for in the preliminary contract was contested was requested, for payment of the penalty provided therein.
The Court of Macerata granted the plaintiffs’ claim, while the Court of Appeal of Ancona, in reversal of the first instance judgment, rejected it, ordering the restitution of the sums paid in execution thereof.
The proceedings before the court of last resort were thus initiated, at the conclusion of which the Supreme Court, recalling a principle previously stated by itself, held that “the failure to reproduce in the final contract for the transfer of corporate shares a clause already inserted in the preliminary contract does not necessarily entail the waiver of the provision contained therein, which is not absorbed if there are elements to the contrary that can be derived from the documents or offered by the parties. It follows that the judge is required to investigate the concrete intention of the parties, especially since the transaction for the transfer of shares requires written form only for the purpose of the enforceability of the transfer of shares against the company and not for the validity or proof of the agreement, so it is necessary to verify whether, with the new deed, the parties merely limited themselves to ‘formalizing’ the transfer with respect to the company, without reproducing all the commitments”.
The Court of Cassation, confirming the decision of the Court of Appeal, based its decision on the fact that the non-compete clause and the related penalty had not been included, unlike the other ancillary obligations provided for in the preliminary contract, within the final contract or in separate deeds. The only provision not reproduced in the final contract was, in fact, only that relating to the non-compete clause, to which an evidently ancillary nature to the transfer of corporate shares should be attributed.
This circumstance was therefore suitable to demonstrate that the failure to reproduce, at the time of the transfer of shares, of the sole non-compete clause expressed the parties’ intention to waive such commitment.
The Supreme Court finally addressed the issue of the applicability of the prohibition on competition by the seller of the business, pursuant to art. 2257 of the Civil Code, to the transaction for the transfer of corporate shares, stating that the transfer of corporate shares should be equated to “the sale of a business, specifically provided for by the rule, when it substantially results in the substitution of one subject for another in the corporate business”.