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According to the Supreme Court, the extinguishment of a debt by datio in solutum is subject to revocatory action
In a recent decision dated May 14, 2024 No. 13227, the Court of Cassation offered important clarifications on revocatory action, in this case brought by the receiver.
The case concerns a purchase and sale, put in place shortly before the declaration of bankruptcy of a company, implemented by datio in solutum, specifically by the transfer of assets, with the price being charged to extinguish a past due debt.
The main question answered by the Court concerns whether or not such an activity is subject to revocatory action, as it is related to the payment of a past due debt, which is exempt from ineffectiveness under Article 2901 paragraph 3 of the Civil Code.
First, the Court had occasion to verify the existence of the requirement of eventus damni, holding correct the reflections of the Court of Merit, which had valued a number of elements, including: (i) the fact that the price agreed upon was not congruous, being lower than the expert estimates, (ii) that only two years earlier the real estate object of the datio in solutum had been purchased at a considerably higher price, and that (iii) the deed of sale had compromised the assets of the bankrupt company, since the property was the only real estate of the bankrupt company and was free from prejudicial transcriptions and registrations.
In particular, the Court recalled the principle that the objective requirement of eventus damni occurs, not only when the dispositive act totally compromises the debtor's assets, but also when it causes even a qualitative change in the assets that results in greater uncertainty or difficulty in satisfying the claim.
The Court went on to note that in the case of a datio in solutum implemented by means of the transfer of assets with the imputation of the price as compensation for an overdue debt, there is an anomalous way of extinguishing the obligation, which is therefore subject to revocatory action.
It is in fact exempt from this remedy only the performance of a past due debt in the technical sense and not a discretionary act, therefore not due, such as the aforementioned assignment, in which the extinction of the obligation is the final effect of a transaction subjectively and objectively different from the one under which the payment is due.
In other words, the Court held that, one thing, is the payment of the debt pure and simple, as such not subject to revocation, another is the extinguishment of that debt by datio in solutum, which, on the other hand, constitutes a different transaction from the one under which the payment is due and is therefore subject to revocation.
Ultimately, the following principles of law were affirmed: (i) a purchase and sale involving a datio in solutum constitutes an anomalous way of extinguishing an obligation and is therefore subject to the ordinary revocatory action brought by the trustee, (ii) on the assumption that the revocatory action was brought to protect claims that predate the stipulation of the purchase and sale, the trustee in bankruptcy had only the burden of proving awareness on the part of the settlor that he was prejudicing the interests of creditors.

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