JUDGMENT NO. 151

YEAR 2026

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

Judges: Francesco VIGANÒ, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has delivered the following

JUDGMENT

in proceedings concerning the constitutional legitimacy of Article 586 of the Code of Civil Procedure, raised by the Ordinary Court of Varese, Second Civil Section, acting as the court of execution, in the proceedings pending between Valerie SPV srl, represented by Phoenix Asset Management spa, and R. D.M. and L. B., pursuant to the order of September 26, 2025, registered under no. 25 of the 2026 register of orders and published in the Official Gazette of the Republic no. 8, first special series, of the year 2026.

Having regard to the appearance of the President of the Council of Ministers;

having heard in chambers on June 22, 2026, the Judge Rapporteur Maria Alessandra Sandulli;

having deliberated in chambers on June 22, 2026.

Riting in fact

1.– By order dated September 26, 2025 (and subsequent order correcting a material error dated November 6, 2025), registered under no. 25 of the 2026 register of orders, the Ordinary Court of Varese, Second Civil Section, acting as the court of execution, raised questions of constitutional legitimacy, with reference to Articles 3, 24, and 42 of the Constitution, regarding Article 586 of the Code of Civil Procedure, concerning the transfer of the property subject to forced expropriation, to the extent that it does not provide that «the court of execution must issue, together with the transfer decree, an order for the marginal annotation, next to the transcription of the establishment of the right of use burdening the distrained property, of the extinguishment of such right pursuant to Article 2812, second paragraph, of the Civil Code or, in the alternative, an order for the cancellation of such transcription, when the transcription was performed after the registration of the mortgage securing the claim of the executing creditor or of an intervening creditor who requested that the distrained property be auctioned as unencumbered by said right of use, and when the user received notice of the pending enforcement proceedings through the notification of an instrument containing the particulars provided for by Article 498 of the Code of Civil Procedure».

1.1.– As to the facts, the referring court premises that, at 12:15 PM on November 9, 2009, Cassa di Risparmio di Parma e Piacenza spa had entered into a loan agreement, in the form of a public notarial deed, with S. D.M., as security for which M.D. Immobiliare srl had granted a first-rank mortgage over two real estate units located in the Municipality of Gavirate; and that shortly thereafter, precisely at 1:30 PM on the same day, the aforementioned company had sold to the same S. D.M. the right of use and to R. D.M. and L. B., spouses under the legal regime of community of property, the ownership of the aforementioned properties, encumbered by such right of use.

The referring judge specifies that the publicity formalities relating to both contracts were completed on November 20, 2009, with sequential numbering, from which it was evident that the registration of the mortgage preceded the transcription of the aforementioned deed of sale. It is further added that the lending bank had assigned its claim and that the assignee, having distrained the ownership right of spouses R. D.M. and L. B. and having notified S. D.M. of a notice of pending enforcement proceedings bearing the information provided for by Article 498 of the Code of Civil Procedure, had requested, pursuant to Article 2812, first paragraph, of the Civil Code, that the property be auctioned as unencumbered by the right of use, given that the aforesaid right, having been established by an instrument transcribed after the mortgage registration, was destined to be extinguished as a result of the forced sale, without prejudice to the right of the user to assert claims on the proceeds, after the satisfaction of the first-rank mortgage creditor.

1.2.– The referring judge reports, moreover, that the expert appointed by him had erroneously included, among the formalities intended to remain the responsibility of the purchaser, the transcription of the aforementioned right of use, prompting the professional delegated to carry out the sales operations to request clarification on the matter. During the hearing scheduled for this purpose, the executing creditor consequently requested the adoption of «measures suitable to inform potential purchasers that the transcription of the establishment of the right of use [would be] subject to a cancellation order contained in the transfer decree».

Following the discussion, the judge raised the questions of constitutional legitimacy under examination.

1.3.– The relevance of the questions allegedly derives from the referring judge’s need to rule on such requests and to clarify, already at the stage of delegating the sales operations, whether it is possible to «order a publicity notice suitable to account for the extinguishment of the right of use following the transfer of the distrained property […], so as to make such decision known to potential bidders through the notice of sale to be drafted by the delegate», thereby enhancing «the marketability of the property, especially following the acquisition by the future successful bidder».

1.4.– As regards the non-manifest lack of foundation, the referring order first recalls Article 586, first paragraph, of the Code of Civil Procedure, which requires the court of execution to order, in the decree transferring the distrained property to the successful bidder, «the cancellation of the transcriptions of attachments and mortgage registrations, unless the latter refer to obligations assumed by the successful bidder pursuant to Article 508» of the same code. It also recalls that Decree-Law No. 273 of December 30, 2005 (Definition and extension of terms, as well as consequential urgent provisions), converted, with amendments, into Law No. 51 of February 23, 2006 (correctly: Article 2, paragraph 3, letter e), number 32, of Decree-Law No. 14 of March 14, 2005, containing «Urgent provisions within the scope of the Action Plan for economic, social and territorial development», converted, with amendments, into Law No. 80 of May 14, 2005), added a second period to the same paragraph, according to which, by the same transfer decree, the court «also orders the cancellation of the transcriptions of attachments and mortgage registrations subsequent to the transcription of the attachment». Finally, it notes that Articles 2913, 2914, 2915, and 2919 of the Civil Code identify the formalities, encumbrances, and burdens which, although not subject to cancellation following the aforesaid decree, remain un-set-up against (ineffective toward) the successful bidder, and correlates this body of rules with that dictated by Articles 2808 et seq. of the same code for cases where the executing creditor or an intervening creditor is secured by a mortgage.

Having thus reconstructed the regulatory framework, the referring judge questions whether the transfer decree may order the cancellation of publicity formalities other than those expressly contemplated by Article 586 of the Code of Civil Procedure. He observes, on this point, that legal scholarship and jurisprudence agree in admitting such a possibility at least with regard to the transcription of precautionary attachment subsequently converted into judicial attachment and, according to the overwhelmingly prevailing orientation, the transcription of the debtor’s bankruptcy judgment or – following the reform of the Business Crisis and Insolvency Code – the transcription of the opening of judicial liquidation. Conversely, he points out the absence of a consolidated trend, qualifying as living law, regarding the cancellation of transcriptions of instruments establishing rights of servitude, usufruct, use, and habitation, performed after the registration of a mortgage and, for that very reason, not opposable to the mortgage creditor and the successful bidder, as they are rights «destined to be extinguished upon the expropriation of the relative property», pursuant to Article 2812, second paragraph, of the Civil Code.

1.5.– The referring order then reviews the conflicting interpretive orientations, highlighting that, according to part of the legal scholarship, an analogical interpretation of Article 586, first paragraph, of the Code of Civil Procedure «would require the issuance of a cancellation order also for the transcriptions of the instruments establishing» the rights indicated in Article 2812, first paragraph, of the Civil Code, where the mortgage creditor has requested the sale of the property as unencumbered. This thesis moves from the consideration that the first period of the first paragraph of Article 586 of the Code of Civil Procedure «examines publicity notices which, upon the transfer of the distrained property, exhaust their function with reference to such property, to then deploy their effects in the subsequent procedural phase». Therefore, once expropriation has occurred, mortgage registrations and the transcription of the attachment would no longer have a raison d’être, since the execution sale produces the «so-called purgative effect» of the prejudicial formalities burdening the property subject to the proceedings, allowing the successful bidder to resell the purchased property «without the creditor being able to expropriate it anew» and enabling the latter to assert his right of priority over the proceeds of the sale, which represent «the new object of his right to be preferred over other creditors of the executed party». From this perspective, the transcription of the instrument establishing the rights of servitude, usufruct, use, and habitation, if performed after mortgage registration, would also exhaust its function with the forced transfer of the property, since these rights are «destined to be extinguished […] and to transfer to the proceeds of the forced sale», which would justify their cancellation with the same transfer decree, under a regulatory framework deemed «corresponding to that of mortgage and attachment».

The referring judge points out, however, that the illustrated doctrinal thesis is not shared by those who, in the wake of the traditional orientation, deny that the discipline of publicity «notices» in the real estate registers can «see its scope of application extended on the basis of analogical interpretation». To this consideration he adds that mortgage registrations and the transcription of the attachment are formalities functional to the conduct of potential enforcement proceedings and exhaust their function with the forced sale of the property to which they pertain; quite different, however, is the case of the rights contemplated by Article 2812, first paragraph, of the Civil Code, whose transcription is not «functional to the conduct of a fruitful enforcement procedure», but is aimed at «resolving the conflict between multiple acquirers» from the same subject, making prevail, pursuant to Article 2644 of the same code, the right of the person who transcribed first. He therefore excludes that the extinguishment of the right, deriving from the expropriation of the property, can in itself entail the cancellation of the transcription of the constitutive instrument, «given that there is no reason to eliminate the effect outlined by Article 2644 of the Civil Code connected to such transcription».

1.6.– The referring order also takes account of the doctrinal thesis according to which the extinguishment of the rights of servitude, usufruct, use, and habitation, in the cases provided for by Article 2812, second paragraph, of the Civil Code, should be made known «already de iure condito, with a marginal annotation next to the transcription of the relative constitutive instrument [with the] function of mere notice publicity». From this perspective, Article 2651 of the Civil Code, which provides for the transcription of the judgment ascertaining the extinguishment, due to non-use, of the rights of use, habitation, or servitude with the function of mere notice publicity, could find application even beyond the typified cases, so as to allow the transfer decree to bear the order to annotate next to the prior transcription of the constitutive instrument the extinguishment of the rights considered by Article 2812 of the Civil Code.

The referring judge, however, does not share this reading. He observes, first of all, that marginal annotation of a transcription also constitutes a publicity notice which, like registrations and transcriptions, can be performed only in cases expressly provided for by law. He then considers the non-existence of a «legislative justification for considering the transfer decree a title suitable for proceeding with a publicity notice», since, in the matter of annotation, Article 2656 of the Civil Code refers to the rules laid down for transcription, which may take place, pursuant to Article 2657, first paragraph, of the same code, only by virtue of a judgment, a public deed, or a private agreement with authenticated or judicially ascertained signatures. Finally, he underlines the difference in guarantees, since a judgment is rendered at the end of contentious proceedings in which the right holder participates, whereas the transfer decree is issued within the framework of enforcement proceedings and, therefore, «without the guarantees of cognitive proceedings».

1.7.– Having thus excluded the possibility of ordering, through the transfer decree, a publicity formality relating to the extinguishment of the rights indicated in Article 2812 of the Civil Code, the referring judge believes that such impossibility creates tension primarily with Article 24 of the Constitution, since «the persistence of publicity notices which, even if formally not opposable to the successful bidder, may appear prejudicial, based on a summary assessment by real estate operators, is notoriously considered an obstacle to the [maximum] fruitfulness [of] sales operations», thereby compromising the effectiveness of judicial protection in enforcement proceedings. In this perspective, the referring judge recalls the intervention of the 2005 legislature on Article 586, first paragraph, of the Code of Civil Procedure, which expressly provided for the order to cancel the transcriptions of attachments and mortgage registrations subsequent to the transcription of the attachment with which enforcement proceedings commenced, highlighting its purpose of reinforcing the «principle of truth» of the real estate registers and preventing «transcriptions or registrations devoid of justification from remaining therein, without corresponding secondary publicity notices giving evidence of their inoperativeness or the extinguishment of the relative rights».

1.8.– The censured rule would also violate Article 3 of the Constitution, as it would be unreasonable – especially following the 2005 legislative intervention aimed at protecting the «need for a truthful representation [in the real estate registers] of the legal condition of the transferred property» – «to permit [the execution court] to order the cancellation of formalities that must be considered simply ineffective against the attaching creditor while not permitting the notification of the extinguishment of rights burdening the distrained property, which extinguishment occurred precisely as a consequence of the forced transfer of the property».

1.9.– Finally, violation of Article 42 of the Constitution is alleged (originally indicated as Article 41 and subsequently rectified by the aforementioned material error correction order), since the persistence, in the real estate registers, of a transcription relating to a right of use now extinguished, albeit un-set-up against the buyer, could prevent obtaining «the maximum possible proceeds from the forced sale», resulting in an infringement of the property right of the executed debtor and of the sacrifice imposed upon him to permit the payment of his debts.

The referring Court specifies in this regard that, although the cancellation of transcriptions constitutes the most suitable instrument to ensure «maximum fruitfulness», an «order to proceed with an annotation, with the function of mere notice-publicity, relating to the extinguishment» of the aforementioned rights would nonetheless be sufficient, since the difference between the two solutions would assume relevance only in marginal cases.

2.– The President of the Council of Ministers has intervened in the proceedings, represented and defended by the State Attorney General’s Office, requesting that the questions be declared inadmissible or, in any event, unfounded.

2.1.– As a preliminary matter, state defense excepts the manifest inadmissibility of the questions, observing that they do not address so much the content of the censured norm, but rather the doctrinal interpretation recalled in the order, from which the court a quo could well have departed, in the absence of a living law precluding the auspicated reading. To this end, it recalls judgment no. 132 of 2019 of this Court, arguing that the referring judge aims to secure endorsement for the proposed interpretation without having previously evaluated the practicability of a constitutionally oriented reading.

It also denounces the contradictory nature of the referring order where it acknowledges that it would be the «overall system of real estate publicity prepared by the Legislature» to exclude the notification in the real estate registers of the extinguishment of rights provided for by Article 2812, first paragraph, of the Civil Code as a consequence of the auction sale of the relative property, thus confirming that the outcome auspicated by the referring judge is «justly and rationally» precluded by Article 586 of the Code of Civil Procedure itself and by the general regulatory system in which it is embedded.

2.2.– On the merits, the State Attorney General observes that conflicts between the successful bidder and third parties holding minor rights are governed by Articles 2919, 2913, 2914, 2915, and 2916 of the Civil Code, whereas the formalities indicated in Article 586, first paragraph, of the Code of Civil Procedure fulfill the function of «protecting creditors by impressing upon the res a destination encumbrance aimed at satisfying them», a function that is exhausted when such encumbrance converts into the right to participate in the distribution of the price realized from the forced sale. It therefore excludes that there is any need to «provide for the extension of Article 586 of the Code of Civil Procedure to transcriptions of minor rights such as the right of use», since said publicity formality fulfills the distinct «function of resolving conflicts between acquirers from the same predecessor, which lies outside the ratio» of the censured norm.

Considered in law

3.– The Court of Varese, Second Civil Section, acting as the court of execution, by the order indicated in the heading, questions, with reference to Articles 3, 24, and 42 of the Constitution, the constitutional legitimacy of Article 586 of the Code of Civil Procedure, to the extent that it does not provide that, with the transfer decree issued following the forced sale, the execution court orders the annotation of the occurred extinguishment, pursuant to Article 2812, second paragraph, of the Civil Code, of the right of use burdening the adjudicated property or, in the alternative, the cancellation of the transcription of the relative constitutive instrument, when it is subsequent to the registration of the mortgage securing the claim of the executing creditor or of an intervening creditor who requested that the distrained property be auctioned as unencumbered and the user has received notice containing the particulars provided for by Article 498 of the Code of Civil Procedure.

3.1.– The censured norm is situated within the discipline of real estate expropriation, dealing with the phase following the payment of the purchase price of the expropriated property and the modalities of transferring ownership to the successful bidder. In particular, Article 586 of the Code of Civil Procedure, in defining the content of the property transfer decree, provides in its first paragraph that the execution court orders «the cancellation of the transcriptions of attachments and mortgage registrations», i.e., the formalities that gave rise to the enforcement proceedings. By Article 2, paragraph 3, letter e), number 32), of Decree-Law No. 35 of 2005, as converted, the legislature added a final period to the reported first paragraph, establishing that «[t]he court with the decree also orders the cancellation of the transcriptions of attachments and mortgage registrations subsequent to the transcription of the attachment».

3.2.– The hypotheses of cancellation expressly provided for by Article 586, first paragraph, of the Code of Civil Procedure are thus invariably limited to transcriptions of attachments and mortgage registrations, while no reference is made to other potentially prejudicial formalities and, in particular, to the transcription of the constitutive instrument of minor real estate rights performed after mortgage registration.

When such a situation occurs, Article 2812 of the Civil Code, in its first paragraph, grants the mortgage creditor specific protection, allowing him to «have the property auctioned as unencumbered», and in its second paragraph adds that «[s]uch rights are extinguished upon the expropriation of the estate, and holders are admitted to assert their claims on the proceeds, with priority over mortgages registered subsequent to the transcription of the rights themselves».

4.– In the opinion of the court a quo, the «impossibility of proceeding with a publicity notice relating to the extinguishment of the rights provided for by Article 2812, first paragraph, [of the Civil Code]», by causing the persistence in the real estate registers of transcriptions which, «even if formally not opposable to the successful bidder, may appear prejudicial, based on a summary assessment by real estate operators», would violate, first of all, Article 24 of the Constitution, since it could hinder obtaining the maximum «fruitfulness [of] sales operations», thereby compromising the effectiveness of judicial protection in enforcement proceedings.

4.1.– The persistence of such publicity formalities would also infringe upon the property right of the executed debtor, since they, despite being un-set-up against the successful bidder and third-party purchasers, could prevent obtaining «the maximum possible proceeds from the forced sale», placing them in tension with Article 42 of the Constitution.

4.2.– Article 3 of the Constitution would likewise be violated, inasmuch as the 2005 legislature unreasonably extended the cancellation order to transcriptions of attachments and mortgage registrations subsequent to the transcription of the original attachment – formalities simply ineffective against the attaching creditor – without providing a similar notice for transcriptions relating to minor real estate rights which, as a result of the forced sale, are extinguished. This would contradict the rationale of the legislative intervention, which the referring judge identifies in the «need to [ensure] a truthful representation [in the real estate registers] of the legal condition of the transferred property» and to prevent «transcriptions or registrations devoid of justification from formally persisting therein».

5.– Preliminarily, the exceptions of inadmissibility raised by the President of the Council of Ministers must be dismissed.

5.1.– As to the alleged failure to attempt a constitutionally oriented interpretation, it is indeed true that, as argued by state defense, in accordance with settled constitutional jurisprudence, the interpretation provided by the referring judge of the challenged norm cannot be uncertain, perplexed, and unresolved (ex plurimis, judgments no. 12 of 2024, no. 225 of 2022, no. 205 of 2021, and no. 7 of 2020), nor can it resolve itself into the improper attempt to obtain from this Court, through a distorted use of the constitutional incident, the endorsement of one interpretation rather than another regarding a provision recognized as susceptible to a dual reading (orders no. 205 of 2014, no. 196 of 2013, no. 304 and no. 185 of 2012, and no. 139 of 2011), or be based on the double and alternative interpretation of the same, without resolving such alternative and without placing the two interpretations in a relationship of logical subordination (judgments no. 132 of 2019, no. 228 of 2014, no. 280 of 2011, and no. 355 of 2010).

In the referring order, however, the court a quo, while acknowledging the conflicting doctrinal orientations favorable to inserting in the transfer decree the order to perform publicity notices other than those expressly provided for by Article 586, first paragraph, of the Code of Civil Procedure and, in particular, a notice attesting the extinguishment of minor real estate rights in the hypothesis provided for by Article 2812, second paragraph, of the Civil Code, illustrates the reasons why it disagrees with such a solution, deeming it impossible to fill the censured gap through interpretation. The court a quo, in fact, considers untenable the hermeneutic paths based on the analogical interpretation of the challenged norm, which would be opposed, according to its reconstruction, by the taxative nature of transcription and annotation hypotheses in real estate registers; the function of the transcription of constitutive instruments of rights provided for by Article 2812, first paragraph, of the Civil Code, aimed not so much at guaranteeing the fruitfulness of enforcement proceedings as at resolving the conflict between multiple acquirers from the same subject; as well as the lack of a «legislative justification for considering the transfer decree a title suitable for proceeding with a publicity notice».

The reasoning of the order, therefore, allows us to consider completed the attempt to experiment with a constitutionally oriented interpretation, which the referring judge explored but consciously excluded.

5.2.– Nor can the exception of contradictory reasoning be deemed decisive.

The referring order, while starting from the observation that it would be precisely the «overall system of real estate publicity prepared by the Legislature» to exclude notification in the real estate registers of the extinguishment of minor real estate rights in the hypothesis governed by Article 2812, second paragraph, of the Civil Code, is overall and unambiguously oriented toward overcoming this effect, deemed an obstacle to the fruitfulness of sales operations, since the persistence of publicity formalities, albeit un-set-up, could prove misleading «to a summary assessment by real estate operators».

From this angle too, therefore, the questions appear admissible, as the potential compatibility of the proposed solution with the regulatory system of publicity formalities does not affect their relevance, but rather pertains to the merits.

It is recalled in this regard that, according to settled constitutional jurisprudence, for the admissibility of questions it is sufficient that the censured norm is applicable in the main proceedings and that a ruling of acceptance can influence the exercise of judicial function (among others, judgments no. 129 of 2025, no. 139 of 2022, no. 247, and no. 215 of 2021), at least with respect to the argumentative path supporting the decision of the main process (ex multis, judgments no. 38 of 2025, no. 80 and no. 50 of 2024, no. 164 of 2023, no. 19 of 2022, no. 249 and no. 154 of 2021; order no. 194 of 2022). The judgment on relevance is therefore reserved to the referring judge, and upon it this Court exercises a merely external review, limited to ascertaining that the reasoning is not implausible, manifestly erroneous, or contradictory (judgments no. 129 of 2025, no. 160 of 2023, no. 192 of 2022, no. 249, and no. 32 of 2021; order no. 194 of 2022), without pushing to an independent examination of the elements that led the court a quo to certain conclusions, being able to censure its evaluations only if they, at first sight, appear absolutely devoid of foundation (judgment no. 59 of 2026). Verification of whether such a perspective is shareable remains reserved to the merits phase (judgment no. 21 of 2026).

In the present case, the constitutional incident arose from the requests of the delegated professional and the executing creditor, aimed at inserting in the transfer decree the order to perform «a publicity notice suitable to account for the extinguishment of the right of use following the transfer of the distrained property», in order to «improve its marketability […] especially following the acquisition by the future successful bidder», and is aimed at obtaining an additive pronouncement to the effect that the transfer decree, alongside the order to cancel transcriptions of attachments and mortgage registrations, «must» also contain the requested annotation order or, in the alternative, cancellation order.

The acceptance of the proposed questions can therefore influence the decision on the aforementioned requests.

6.– On the merits, the questions are unfounded.

First of all, the referring judge, with reference to Article 3 of the Constitution, complains of the intrinsic unreasonableness of the legislature’s choice which, in amending Article 586, first paragraph, of the Code of Civil Procedure, did not extend the cancellation order to all formalities already ineffective and un-set-up against the successful bidder, limiting it instead to the transcriptions of attachments and mortgage registrations subsequent to the transcription of the original attachment.

It is worth recalling in this regard that the legislature enjoys broad discretion in regulating process and shaping procedural institutions, with the sole limit of manifest unreasonableness or arbitrariness of the choices made (among the most recent, judgments no. 59 of 2026, no. 146, no. 76, no. 39, and no. 36 of 2025, no. 189 and no. 96 of 2024, and no. 67 of 2023). As this Court has already affirmed, such broad discretion «must all the more be reaffirmed with reference to institutions – such as the transcription of judicial claims – in which procedural aspects are inextricably connected with multiple and delicate substantive profiles» (judgment no. 143 of 2022, point 3.8. of Considered in Law), inasmuch as «[t]he microsystem of declaratory publicity created by Articles 2652, 2653, and 2668 of the Civil Code, through the discipline of transcription and cancellation of judicial claims, synthesizes multiple individual rights and general interests, all of constitutional significance» (judgment no. 143 of 2022, point 3.1. of Considered in Law).

Similar considerations apply with reference to the question at hand, since the discipline of real estate publicity is designed, through the legal knowability of the legal events of property, to protect a plurality of interests, among which the security of legal transactions and the blameless reliance of third-party purchasers assume particular importance. Review of the manifest unreasonableness or arbitrariness of legislative choices must therefore be measured against the delicate procedural and substantive profiles intertwined in the matter of real estate expropriation.

6.1.– Within this framework, the legislature achieved the necessary balancing between conflicting needs through the rule of ineffectiveness and un-set-up-ability of potentially prejudicial publicity formalities performed subsequent to the transcription of the attachment or the registration of the mortgage.

Despite having different natures (an act of forced enforcement the former and a constitutive act of the real property security right the latter), both institutions are aimed at impressing an encumbrance, opposable to third parties, on the debtor’s property for the coercive satisfaction of the creditor, who, in the case of a mortgage, also has the right to be satisfied with priority over the property itself. Their function is therefore to render ineffective, toward the attaching creditor and intervening creditors, acts transferring or constituting rights over distrained properties that have been subsequently transcribed. The transcription of the attachment and the registration of the mortgage prevail, in fact, over subsequently performed formalities, which cannot be set up against the executing creditor, intervening creditors, and successful bidder, nor prejudice their respective positions.

6.2.– In particular, Article 2913 of the Civil Code affirms the principle, consistent with public interest, that acts of alienation of properties subject to attachment «[h]ave no effect to the prejudice of the attaching creditor and of creditors who intervene in the execution». Articles 2914 and 2915 of the Civil Code then govern acts performed by the debtor prior to attachment but made public only after its transcription, limiting their effectiveness toward the same creditors. In particular, Article 2914 of the Civil Code establishes that «[a]lienas of real estate or movable property registered in public registers, which have been transcribed after the attachment», «have no effect to the prejudice of the attaching creditor and of creditors who intervene in the execution, even if prior to the attachment». Article 2915 of the Civil Code provides the same consequence for «acts involving encumbrances of unavailability», where they have not been transcribed prior to attachment when they have as their object real estate or movable property registered in public registers, and, in other cases, where they do not have a certain date prior to attachment.

Article 2916 of the Civil Code constitutes, in turn, a particular application of the same rule regarding priority causes subsequent to attachment, providing that, «[i]n the distribution of the sum realized from execution», no account shall be taken «of mortgages, even if judicial, registered after the attachment», nor «of privileges for whose effectiveness registration is necessary», when this is subsequent to attachment, nor, finally, «of privileges for claims arising after attachment».

Similar criteria are laid down for mortgages which, pursuant to Article 2808 of the Civil Code, «attribute to the creditor the right to expropriate, even in confrontation with the third-party purchaser, properties bound as security for his claim and to be satisfied with preference over the price realized from expropriation», specifying that they «are constituted by registration in the real estate registers». The right of pursuit recognized to the mortgage creditor aims to secure him from the danger of potential subsequent alienations of the mortgaged property. The owner of the mortgaged property, in fact, retains enjoyment and disposition of his right, although his acquirer remains exposed to enforcement action by the mortgage creditor.

6.3.– The act of disposing of the distrained or mortgaged property is therefore not prohibited in itself, but is struck by a sanction of de iure ineffectiveness if, even if performed previously, it was transcribed subsequent to the transcription of the attachment or the registration of the mortgage.

The system thus outlined is aimed at guaranteeing the practical utility of attachment, whose purpose is, in turn, to bind the distrained property to the satisfaction of the executing creditor and intervening creditors, preventing the debtor from disposing of it and removing it from enforcement proceedings. The same system, moreover, also operates toward the successful bidder. Article 2919, first paragraph, of the Civil Code, in fact, after providing that «[t]he forced sale transfers to the purchaser the rights that belonged on the thing to the person who suffered expropriation, subject to the effects of bona fide possession», specifies in the second period that «[h]owever, rights acquired by third parties on the thing are not opposable to the purchaser if the rights themselves have no effect to the prejudice of the attaching creditor and of creditors who intervene in the execution». Thus, the successful bidder acquires the same rights that belonged to the executed debtor at the time of attachment (so-called derivative acquisition), but, at the same time, is protected against dispositive acts possibly carried out by the latter, on a par with the executing creditor and intervening creditors.

6.4.– The choice made by the 2005 legislature must therefore be evaluated in light of the overall publicity system operating within enforcement proceedings. This system already protects the claims of the executing creditor and intervening creditors, as well as the position of the successful bidder. The latter, in fact, can always assert the ineffectiveness and un-set-up-ability against him of transcriptions and registrations subsequent to the transcription of the attachment or the registration of the mortgage, which are only apparently prejudicial, without prejudice to the faculty to request their cancellation from the registrar of real estate registers, upon acquiring the consent of the holder of the transcribed right, or to have his right to the cancellation of the already ineffective and un-set-up formality ascertained by judgment in cognitive proceedings. Pointing in this latter direction are the orientations of scholarship and jurisprudence, which trace the relative interest to act to the need to achieve a legally appreciable utility not attainable without court intervention. In particular, the Court of Cassation has recognized the existence of such interest with reference to formalities that, while unable to produce the typical effects of opposability of the transcribed act (as in the case of illegitimate transcription), can nevertheless determine «a state of uncertainty or doubt, in itself prejudicial to the marketability of the property», and therefore concretely impact the choices of potential purchasers (Court of Cassation, Second Civil Section, judgment of May 28, 2010, no. 13127).

6.5.– It must also be considered that the cancellation of a publicity formality does not produce merely internal effects within enforcement proceedings, but impacts erga omnes on the legal knowability of property events and on the resolution of conflicts between multiple rights holders.

Precisely this external scope imposes caution in attributing such an effect to an order, such as the transfer decree, issued within the framework of enforcement proceedings and not at the conclusion of full cognitive proceedings. Such caution is all the more necessary when considering, on the one hand, that the transfer decree is challengeable only through opposition to enforcement acts pursuant to Article 617 of the Code of Civil Procedure, an instrument subject to a short limitation period whose decision is not appealable, but only subject to review before the Court of Cassation; and on the other hand, that the United Sections of the Court of Cassation, resolving a conflict of jurisprudence, affirmed the obligation of the real estate registrar to immediately execute cancellations ordered by the transfer decree, «in any event independently of the expiration of the term for proposing enforcement oppositions pursuant to Article 617 of the Code of Civil Procedure» (Court of Cassation, United Civil Sections, judgment of December 14, 2020, no. 28387).

6.6.– In light of the aforementioned elements, the censured legislative choice cannot be said, within the limits of review pertaining to this Court, to be manifestly unreasonable.

7.– The remaining questions, raised with reference to Articles 24 and 42 of the Constitution, can be examined jointly. Both proceed from the anticipated risk that real estate operators, following a summary assessment of real estate register records, may be induced to believe prejudicial formalities exist which, instead, are not opposable to the successful bidder, as they concern minor real estate rights already extinguished. According to the referring judge, such erroneous perception could hinder «the maximum fruitfulness of sales operations» and the attainment of «the maximum possible proceeds».

Such an occurrence, however, does not integrate a concrete and current constitutional vulnus, resolving itself rather into a factual inconvenience. According to the settled jurisprudence of this Court, indeed, an inconvenience of this nature is not suitable «in itself to impact the alleged violation of the evoked constitutional parameter (judgments no. 117 of 2012 and no. 362 of 2008; order no. 158 of 2014), since it is not directly attributable to the regulatory provision, but linkable "to contingent circumstances pertaining to its concrete application (order no. 270 of 2012), not involving, for that reason, a problem of constitutionality” (judgment no. 114 of 2017 and no. 295 of 1995)» (judgment no. 228 of 2023, point 8.1. of Considered in Law; in the same sense, judgments no. 205 of 2025 and no. 111 of 2024).

7.1.– As illustrated above, in the conflict between the purchasing successful bidder and third parties claiming rights over the distrained property, the position of the executing or intervening creditor assumes relevance, pursuant to Article 2919, second paragraph, of the Civil Code.

If expropriation is promoted by the mortgage creditor, Article 2812, first paragraph, of the Civil Code grants him specific protection, allowing him to have the property sold as unencumbered even when, after mortgage registration, a constitutive instrument of servitude, usufruct, use, or habitation has been transcribed. In this hypothesis, the consistency of the property must be identified with reference to the time of mortgage registration, regardless of the subsequent transcription of the attachment, since the second paragraph of the cited Article 2812 itself provides for the extinguishment of the right at the time of expropriation of the encumbered property. This is consistent with the function of the mortgage, directed at ensuring the creditor realizes his claim with preference in enforcement proceedings, preventing his position from being prejudiced by dispositive acts subsequently carried out by the debtor and, in particular, by constitutive acts of minor real estate rights whose transcription subsequent to mortgage registration remains peacefully un-set-up against the successful bidder, as clearly emerges also from the referring order.

7.2.– The risk feared by the court a quo, therefore, does not derive directly from the censured regulatory provision, but from a potential summary reading of real estate register records and an erroneous reconstruction of the overall real estate publicity system, failing to account for the effects produced, pursuant to Article 2812 of the Civil Code, by the expropriation of the encumbered property.

Thus, the effectiveness of judicial protection in enforcement proceedings is not compromised. It is true that the guarantee secured by Article 24 of the Constitution also encompasses the phase of forced enforcement, necessary to make effective the implementation of the judicial measure (ex multis, judgments no. 211 and no. 160 of 2024, no. 159 of 2023, and no. 228 of 2022); however, in the present case, the legal system already provides suitable instruments to preserve the position of the mortgage creditor and the purchasing successful bidder.

Nor, for the same reasons, is the denounced infringement of the executed debtor’s property right discernible. The property must be put up for sale and valued as unencumbered, without taking into account the decrease in value possibly deriving from the presence of a minor real estate right destined to be extinguished upon expropriation. Moreover, the very event from which the constitutional incident stems confirms that the obstacle to the correct determination of the property’s value did not derive from the censured norm, but from an error in the valuation appraisal, subsequently amended upon the referring judge’s disposition.

8.– In conclusion, the questions of constitutional legitimacy of Article 586 of the Code of Civil Procedure, raised with reference to Articles 3, 24, and 42 of the Constitution, both in the primary and in the alternative formulations, are unfounded.

This Court, however, is not unaware that the persistence in real estate registers of even apparently prejudicial formalities may cause, on a practical level, difficulties in the subsequent circulation of the property or in access to credit by the successful bidder. In this perspective, even in the absence of a constitutional vulnus, an intervention by the legislature aimed at establishing a simpler mechanism consistent with the effects of forced expropriation appears desirable, so as to prevent interpretive uncertainties and avoid unnecessary expenditure of time and resources, delays in property circulation, and overburdening of judicial activity.

on these grounds

THE CONSTITUTIONAL COURT

declares unfounded the questions of constitutional legitimacy of Article 586 of the Code of Civil Procedure, raised, with reference to Articles 3, 24, and 42 of the Constitution, by the Ordinary Court of Varese, Second Civil Section, acting as the court of execution, by the order indicated in the heading.

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on June 22, 2026.

Signed:

Giovanni AMOROSO, President

Maria Alessandra SANDULLI, Rapporteur

Valeria EMMA, Chancellor

Filed in the Registry on July 24, 2026

The Chancellor

 

The anonymized version conforms, in its text, to the original