Judgment in Cassation, in the United Sections the characteristics of the defense attorney

Civil

by Francesco Machina Grifeo

Is ‘specialty’ satisfied solely by the ‘topographic’ criterion? And is the content the same for the power of attorney at the bottom and the one joint materially or electronically?

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When can the specialty requirement of the power of attorney for the judgment in Cassation? It is enough to follow the “topographic” criterion, i.e. having been placed at the bottom of the appeal or in any case to it “attached“, also computerically, or it is necessary to look at its specific content, and in particular at the indications relating to the contested measure. To these questions the Third Civil Section, ordinance no. 6946/2022he called to answer the United Sectionsnoting a “discrepancy” of interpretative guidelines and considered “the relevance” of a question of a procedural nature “which potentially arises in an indefinite series of appeals concerning the most varied subjects”.

The case is that of an enforcement process initiated by a citizen holding an enforceable title against a bank. The bank, however, had proposed opposition and had won both in the first and second degree. The power of attorney issued by the appellant to her lawyer, the decision reads, had been drawn up on “self-contained sheet” and “only materially linked to the appeal” as well as being without date and other specific indications. In fact, it made a generic reference to the “cassation proceeding before the Supreme Court of Cassation” against Intesa Sanpaolo.

According to dating orientation when from the copy notified to the other party it appears that the appeal on cassation (or the counter-appeal) presents in the margin or at the bottom or on a separate sheet materially joined to them a power of attorney issued to the defender who signed the deed, “this power of attorney must be considered conferred for the judgment of cassation and therefore satisfies the requirement of specialty provided for by Article 365 of the Code of Civil Procedure even if it does not contain any reference to the sentence to be challenged or to the judgment to be promoted”.

The address most recent instead it is more rigorous, it states that «the appeal to cassation is inadmissible when the power of attorney, affixed on a separate sheet and materially joined to the appeal pursuant to art. 83, paragraph 2, cpc, contains expressions incompatible with the required specialty and aimed rather at activities typical of other judgments and procedural phases”.

Therefore, the reasoning continues, the new orientation – “at least implicitly” – seems to presuppose a different treatment for the two hypotheses: power of attorney in the margin or at the bottom of the appeal and power of attorney on an independent sheet materially joined to the appeal itself, “even if for the sole purpose of evaluating the specialty criterion of the defense power of attorney for the judgment of legitimacy, pursuant to Article 365 of the Code of Civil Procedure. “.

The specifics of the telematic civil process “which has led and presumably will lead, in fact, to the drastic reduction of the hypotheses of powers of attorney actually issued at the bottom or on the sidelines of the appeal and of powers of attorney on an independent sheet materially joined to the appeal”. They will in fact be replaced by the hypotheses of the power of attorney “on a separate electronic document signed with digital signature and joined to the deed”, as well as of the power of attorney conferred on paper support of which “the computerized copy authenticated with digital signature” can be transmitted by the defender. The latter modalities which in perspective “should become those that tend to exclusives“.

Ultimately, the referral to the Sections was triggered because:

to) in the first place, the topicality and effective scope of the principle according to which the specialty of the defense attorney for the judgment of legitimacy it can be satisfied by virtue of a criterion not relating to its content but also only of a purely “topographical” nature;
b)
where it is deemed to confirm the aforesaid principle, the hypotheses in which it operates are clearly identified and, in particular, whether it should be attributed the same rangeboth in the case of power of attorney issued in the margin or at the bottom of the paper appeal, and in the case of power of attorney on paper or other autonomous supportwhich is materially, or by computerized means, linked to the appeal itself or, in any case, attached to it according to the provisions, including regulations, in force on the subject of telematic documents;
c) in any case, the cases in which, possibly, the textual content of the power of attorney for the cassation itself must be considered incompatible with the specialty required by art. 365 cpc.

Judgment in Cassation, in the United Sections the characteristics of the defense attorney