L’ALIENAZIONE DI BENI DI PROVENIENZA DONATIVA: TRA TUTELA (REALE?) DEI LEGITTIMARI ED ESIGENZA DI PROTEZIONE DELL’ACQUIRENTE O PROMISSARIO ACQUIRENTE

The main objective of this doctoral thesis deals with the intricate problem of the alienation of donated goods generally regarded as unsafe, due to the risk of claims by the donor’s forced heir. The problematic issue arises from the current succession law rules: in Italy, indeed, the deceased person’s close relatives (the spouse, the children and, in their absence, the ascendants) have the right to receive a certain portion of his/her estate. In particular, the injured forced heir (of that deceased who had executed the donation in favor of the donee-seller before his death) may file a lawsuit against the third-party purchaser who acquired the donated property to lay claim to the immovable asset and obtain its restitution in kind (restituzione in natura) under specific conditions. More specifically, this dissertation focuses on the case the purchaser (or the promissory buyer) fears to lose the property as a result of the legal action regulated by article 563 of the Italian Civil Code undertaken by the injured forced heir and intends to establish whether any mechanism of protection is available especially when the donative origin of the purchased good is only known after conclusion of the sale contract (or of the preliminary agreement). In order to contain the problematic issue concerning the circulation of the immovables coming from donation, this doctoral thesis aims to assess whether the buyer (or the promissory purchaser) can rely on the provisions on warranty for eviction or has an alternative (or, even, concurrent) pre-contractual claim for compensation against the seller (or the promisor seller) who failed to disclose the donative origin of the immovable asset.