The Court of Milan’s judgment no. 2063/2020 of March 9th 2020 returns on the problem of the written form of a publishing contract and recalls an important precedent of 2018 which deserves to be remembered.
With sentence no. 5236/2018, the Court of Milan confirmed the jurisprudential orientation acknowledging factual and pacific elements – such as the delivery from the author to the publisher of the material and/or of the manuscript to publish, the correction of drafts and the release by the author of the “let it be printed” – as evidence of the existence of a publishing contract in oral form.
The case concerned a well-known publishing company which had published a book containing photographs, without a publishing contract drawn up in writing.
The author brought up a legal action against the publisher stating that the latter should not have published her book for lack of her written consent to the publication.
In the author’s opinion, this publication should therefore have been qualified as unlawful and the publisher should have been ordered to pay detriments.
The publisher, appearing before the judge, defended itself by pointing out that the author had sent the material to the publisher, in particular the digital files of the photographs representing the content of the book and, in addition, she attended the promotion events of the publication once printed.
And there is more: the publication occurred both with the thanks of the author to the publisher as well as with the preface of the author’s husband, a popular Italian singer.
On the basis of the described factual, pacific and documented elements, the publisher affirmed the existence – even if not released in writing – of the consent of the author to the publication of her photographic book.
The Court agreed with the publisher, specifying that “Contracts requiring a written form ad probationem, unlike those for which the written form is ad substantiam, are valid even if stipulated orally. In this case, the written form constitutes only a limit to the proof, that in particular concerns the testimonial evidences, not admissible outside the hypothesis expressly provided by art. 2725 c.c, of the blameless loss of the document. On the contrary, the written form ad probationem does not exclude other evidences: oral, such as confession or oath, or documental”.
The most recent judgement of the Court of Milan delivered on March 9th 2020 (no. 2063/2020) recalled the above-mentioned principles and also identified the type of publishing contract and the content of the negotiating relationship that arose between the parties which is, in absence of a written form, obtainable from the fact that followed.
Maria Luisa Milanesi