Article 36 of Law No. 392/1978 allows the tenant to assign the lease agreement for non-residential use together with the transfer of the business even without the landlord’s consent, provided that the assignment is communicated to the latter. If the landlord has not released the assignor, it may take action against them should the assignee fail to fulfill the obligations undertaken.
That being said, the Court of Cassation, with Order No. 4405 of February 19, 2024, returned to the matter, clarifying that, in the presence of multiple assignments of the lease agreement, the landlord cannot immediately turn to the non-released assignors (who are themselves assignees), but must first request performance from the last assignee. Only in the event of non-performance by the latter may the landlord take action against the parties to previous assignments who remain bound, among whom joint and several liability operates, without there being any autonomous beneficium ordinis between them.
The Court then specified that, for the purposes of compliance with the beneficium ordinis, mere delay in payment of rent is not relevant, but rather the actual breach by the assignee, which the landlord must establish through an autonomous act prior to legal action. Such act does not require solemn formulas: a request suitable to identify the obligated party, make explicit the creditor’s claim, and clearly manifest the intention to obtain performance (formal notice of default) is sufficient.
In this framework, the Supreme Court held that the mediation application, or the request to participate in mediation, may also constitute such prior request for performance, provided it is addressed to the assignee and, in case of successive assignments, to the last assignee. Due to its functional characteristics, mediation may indeed serve as an ante causam act suitable to establish the breach before the institution of proceedings.
The Court of Cassation further specified that:
- joint and several liability among the parties who remain bound in chain assignments does not in any event allow dispensing with prior notice to the last assignee, who remains the first party from whom the landlord must request performance;
- once the breach by the last assignee has occurred, the intermediate assignors are jointly and severally liable among themselves, without being able to invoke, in their mutual relations, an autonomous beneficium ordinis.