The Italian Supreme Court on the legitimacy of the transfer of economical rights of a work without the co-owner consent

With order no 23498 of August 26, 2021, the Italian Supreme Court decided on the admissibility of the transfer of economical exploitation rights of cinematographic works without the co-owner consent.

In the case under exam, R., co-owner of rights on some cinematographic works with C., took C. to the Court of Rome for having concluded – without its consent – a number of contracts for the exploitation of such works.

The respondent defended itself claiming to be the holder of an exclusive and perpetual mandate for Italy and the entire world, as it rightfully took over the position of the mandated L., a company acquired by C. in 1998 which at the time had a mandate. This is, in particular, a typical scenario of mandate in rem propriam, that is a mandate given also in the interest of the mandated (first L., now C.) regulated by art. 1723, subparagraph 2, c.c.

Moreover, in the course of the judgment, it was found that the ownership of the rights held by R. is the result of the individual transfer by the bankruptcy of X., which in turn was the original co-owner of such rights with L., which, as mentioned, is instead the legal predecessor of the respondent.

The diriment fact of the matter evaluated for its legitimacy, therefore, is whether there could be an automatic succession of R. even in the separate contract of mandate – ex latere of the mandated – which originally bound X. as (bankrupt) legal predecessor of the plaintiff.

The Italian Supreme Court, confirming what stated by the Court of Appeal, rejected the appeal of C. considering that the mandate contract, as a mandatory and personal act, bound exclusively X and its bankruptcy and therefore now it is not enforceable to the holder of the rights which did not expressly accept to enter it. Following such argumentative process, the Court stated the following principle of law: “the holder of a good, lacking special agreement in the act of the transfer, does not succeed in the managing of contracts concluded by the transferor and in particular in a mandate in rem propriam ex art. 1723 c.c., subparagraph 2, except for exceptional cases specifically provided for by the law, among which the scenario provided for in art. 2558 c.c. in the matter of company transfer”.

In the case under exam, therefore, the transfer of economical rights of cinematographic works in question by the respondent C. was considered illegitimate, lacking an expressed consent by the complaining party R., as co-owner of such rights.