Art. 1451 of the Civil Code Enforceability against third parties of the simulated transaction.

[:en]Pursuant to theArticle 1415 of the Civil Code. simulation 'may not be relied on by the contracting parties, the successors in title or the creditors of the simulated alien, to the third parties which bona fide have acquired rights from the apparent owner."In essence, the rationale is to protect the third party vis-à-vis the parties by assigning prevalence to the trust that third partiesin good faith, have been able to place on the outward appearance of the contract.

Jurisprudence has pronounced itself on this matter by stating that "for the simulation not to be enforceable against third parties who in good faith have acquired rights from the apparent owner is necessary that the third party is the holder of a related or dependent legal situation or that in some way it can be influenced by the simulative agreement."[1]

Jurisprudence agrees that the concept of third in Article 1415 of the Civil Code must be interpreted broadly and broadly, with the view that sufficient that there is a mere connection or a simple dependency relationship between the third party's legal situation and the simulative agreement.

For example, one can read "....Article 1415 Para. (1) of the Civil Code must be interpreted as meaning that the simulation may not be opposed by the apparent owner against third-party purchasers in good faith, i.e. those who, on the basis of the simulated contract, obtain a favourable legal effect in ignorance of damaging the rights of others...."[2]

On this point, the same doctrine has expressed itself in complete agreement with the aforementioned jurisprudential orientation, stating that for third parties formerly Article 1415 of the Civil Code means all those who achieve a favourable legal effect on the basis of the simulated contract (and this responds to the general rule that one who creates an apparent negotiating situation cannot enforce the real situation against bona fide third parties.[3]

Moreover, this is nothing more than an application of the more general principle of the protection of trust "... The principle of the appearance of rights, which is linked to the more general principle of the protection of innocent expectations, may be invoked when there are objective elements capable of justifying the third party's belief as to the correspondence between the apparent situation and the real one...".[4]

As to the third party's good faith, it is briefly noted that doctrine[5] and case law[6] agree that the third party is relieved of the burden of proving it since this is presumptive in nature.

Finally, it is noted that in this matter, bad faith is identified not with the "mere science"of the simulation, but with the intention of facilitating the purpose in view of which the simulation was carried out.[7]

Therefore, the third party not only does not have the burden of proving its good faith, but it is up to the apparent holder to prove its bad faith.

ABSTRACT
  • Under Art. 1415 of the Civil Code, the third party is protected with respect to the parties, the legislature having given precedence to the reliance that the third party, in good faith, has placed on the outward appearance of the contract
  • In order for the simulation not to be enforceable against third parties who in good faith have acquired rights from the apparent owner, it is necessary for the third party to be the owner of a legal situation that is connected with or dependent on, or in some way affected by, the simulatory agreement
  • The concept of third party in Article 1415 of the Civil Code must be interpreted broadly and broadly
  • The third party is relieved of the burden of proving his good faith since this is presumptive in nature, so it is up to the apparent holder to prove his bad faith

[3] cf. M. Bianca: Civil Law - The Contract - Giuffré p. 667;

[5] Mengoni, Purchase at non-domination, 1949, 117 and later editions;

[6] Cass. 1949, no. 53; Cass. 1960, no. 1046; Cass. 1970, no. 349; Cass. 1987, no. 5143; Cass. 2002, no. 3102;

[7] Cass. 1986, no. 2004; Cass. 1991, no. 13260;

 

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