Contracts with written form ad probationem, the objection pursuant article 2725 cannot be declared ex officio

On the limitations of witness evidence in contracts has returned to pronounce the Supreme Court that, in a recent statement (No. 16723 of 31st August 2020), has reviewed the codicistic discipline analyzing the different attitudes of the objection of inadmissibility of witness evidence in contracts where the written form is required ad substantiam and in contracts where the form is prescribed ad probationem.

What emerges from the principle of law enunciated by the Supreme Court is precisely a different ratio legis between the procedural rules dictated by reasons of public order and those imposed to protect private interests.

And in fact, in contracts in which the written form is required ad substantiam – being the essential requirement under penalty of nullity – the testimonial evidence of the contract is inadmissible (except for the hypothesis of the blameless loss of the document). The objection of inadmissibility can be deduced in any state and degree of judgment and can be taken over ex officio by the judge.

When, on the other hand, the written form is imposed ad probationem, the form is a procedural requirement of the contract: this means that the absence of the act imposes a limitation on the field of proof. In this case, however, the inadmissibility of the testimonial evidence must be objected to by the party concerned before its admission and, if the evidence has also been taken, its nullity must be objected to pursuant article 157 paragraph 2 of the Italian Code of Civil Procedure.

Failing this, the nullity shall be deemed healed, since the limit set forth in article 2725 of the Italian Civil Code is dictated in the exclusive interest of the parties. So the parties, with their procedural conduct, have full right to renounce it. The judge is therefore precluded from any official investigation regarding the admissibility of the testimonial evidence.


Desiree Pasquariello