The 'trascrizione' system in Italy from the end of the nineteenth century to the promulgation of the civil code (1942)

AutorAlan Sandonà
Páginas137-160
THE “TRASCRIZIONE” SYSTEM IN ITALY
FROM THE END OF THE NINETEENTH CENTURY TO
THE PROMULGATION OF THE CIVIL CODE (1942)
Alan Sandonà
Given its instrumental nature and the intrinsic high degree of technicality,
the “trascrizione” system would appear, at rst glance, to attract the interest
of “practical” jurists or, in any case, positive law cultists.
Upon delving slightly deeper, it becomes clear, however, that this is a cru-
cial pillar of the legal system, around which top-priority judicial and econom-
ic issues crystallise.1
The effects of the system for the public disclosure of transfers and prop-
erty rights2 to which the “trascrizione” belongs, extend beyond inter-private
relationships (between contracting parties and vis-à-vis third parties). Not
only is it relevant in relations with the mortgage and land register system, but
it is also of signicant interest to the national economy, especially in terms
of credit certainty (not only in terms of land credit), and consequent growth.
The certainty of immovable property purchases and the possibility to ef-
fortlessly provide proof of rights and encumbrances pertaining to properties
are prerequisites for an efcient credit system, guaranteeing the safe use of
capital on the one hand and rapid debt recovery in the event of default on the
other hand. The fact that these conditions can be ensured by an efcient pub-
lic disclosure system makes it easy to understand why it is such an essential
part of any legal system.
The study of the immovable property public disclosure in a legal system
and the reform proposals arising therefrom reveals much about its founding
principles, internal tensions, the essence of the society of which the system is
an expression.
Unsurprisingly, the topic has since returned to the limelight. The econom-
1 Petrelli 2014, p. 103 ff.
2 Every use, in the context of this paper, of the term “property” (also in variants “real
property”, “immoveable property”, “ownership”) alludes to the juridical institution of the
proprietà” of the civil law tradition (area in which the property is understood as an ab-
stract right over an asset, including the right to dispose of it and enjoy it, directly or in-
directly) and not to the corresponding technical-legal terms of the law of property, that
pertains to the regime of goods and rights, in common law experience.
137
ALAN SANDONÀ
138
ic crisis which has struck Europe (and beyond) since 20083 has determined
a signicant rise in non-fullment and insolvency. There has been a conse-
quential rise in the number of immovable property expropriation procedures.
The Italian legislator has attempted to rectify on a number of fronts, 4 de-
spite never extending its efforts to the realm of public disclosure. An updated
reection on the “trascrizione” thus acquires new operative meanings, sub-
jecting the regulatory framework to a veritable stress test, which can reveal its
strengths and weaknesses.5
Hence the interest in studying it from a historical and judicial perspec-
tive,6 especially by focusing the investigation on the period spanning the late
19th century and the promulgation of the 1942 Civil Code (currently in force),
which is crucial for the Italian legal system.
The “trascrizione”, in its materiality, is a mere formality:7 it is the entry in
chronological order of a deed pertaining to real property rights in a register
ordered on a personal basis. Depending on the deed requiring registration,
the nature of the register in which it is entered and the effect which the system
attributes to the fullment of the formality at hand (constitutive,8 declarative9
3 Particular reference is made to the repercussions on the real economy generated by
the nancial crisis caused by the speculative bubble over subprime loans, which began in
the United States in 2006 and subsequently infected Europe.
4 Ranging from reforms of (or affecting) the executive process (cf. Act no. 69 of 18
June 2009, Act no. 3 of 27 January 2012, art. 1, subsection 20, Act no. 228 of 24 December
2012, Legislative Decree no. 132 of 12 September 2014, converted with amendments into
Act no. 162 of 10 November 2014; Legislative Decree no. 83 of 27 June 2015, converted
with amendments into Act no. 132 of 6 August 2015) to the promulgation of the Code of
Business Crisis and Insolvency (Legislative Decree no. 14 of 12 January 2019).
5 In 2012 these premises led the National Council of Notaries to prepare an interest-
ing project for the reform of the Italian immovable property publicity system. Cf. Consiglio
Nazionale Notarile 2012.
6 Numerous authors have focused, in historical prospective, on immovable property
publicity system. These include Besson 1891; Luzzati 1889; Magnin 1896; Coviello 1907,
p. 47ff; Regnault 1929; Colorni 1954; Pugliatti 1956, Liberati 1995, Petrelli 2007, 2009.
7 The issue of the qualication of “trascrizione” as a mere formality or a veritable
“law system” is of paramount importance in determining its nature and function. Cf. Va-
dala-Papale 1885, p. 8.
8 “Constitutive” publicity is required for the completion of a deed. Therefore, if it is
omitted, the deed is null and void and fails to generate effects between parties or vis-à-vis
third parties.
9 “Declarative” publicity renders facts or legal deeds enforceable against third parties,

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