Italian Supreme Court Clarifies Prescription Rules for Legal Fees

A recent ruling by the Italian Court of Cassation, Section II, in ordinance no. 27709/2025, clarifies the application of presumptive prescription to legal fees, particularly when the debt is disputed. The court ruled that the exception of presumptive prescription is not applicable when a debtor contests the underlying credit itself.

The Case Background

The case involved a lawyer seeking payment for services rendered in a marital separation proceeding and a separate easement agreement case. Lower courts initially accepted the debtor’s objection of presumptive prescription, rejecting the lawyer’s claim. The lawyer appealed to the Supreme Court, challenging this decision.

Understanding Prescription in Italian Law

Italian law recognizes two types of prescription:

• Extinctive Prescription: This relates to the failure to exercise a legal right within a timeframe established by law (Article 2934 of the Italian Civil Code).
• Presumptive (or Improper) Prescription: This is based on the presumption that a debt has been paid or extinguished within a specific period (Articles 2954 et seq. Of the Italian Civil Code).

The key difference lies in the nature of the presumption. Presumptive prescription doesn’t affect the substantive law but operates on a procedural level, shifting the burden of proof. The debtor is relieved of the burden of proving payment, although the creditor must demonstrate that the service was not rendered or the debt remains outstanding.

The Core of the Ruling: Incompatibility of Dispute and Prescription

The Court of Cassation emphasized that presumptive prescription is fundamentally different from extinctive prescription. Presumptive prescription is rooted in the assumption of full payment of the claimed credit. It is incompatible with defenses that question either the existence of the credit or its amount.

Article 2959 of the Italian Civil Code states that the exception of presumptive prescription is rejected if the debtor has admitted in court that the obligation has not been extinguished. This admission can be inferred from:

• Disputing the amount of the debt.
• Denying the existence of the debt altogether.
• Identifying a different creditor.
• Admitting to paying a lesser sum than claimed.

The court clarified that defenses claiming payment or extinguishment of the debt do not invalidate the presumptive prescription exception, as they reinforce the idea that the obligation has been met.

Application to Legal Fees

The right to compensation for a lawyer’s services is typically subject to a three-year presumptive prescription period (Article 2956, paragraph 2, of the Italian Civil Code). However, case law has established that this does not apply if the credit arises from a written contract (Cass. 15566/2024). Presumptive prescription is generally justified in informal relationships where payment occurs promptly and without written documentation.

The Court’s Decision

In this specific case, the Court of Cassation found that the lower court erred by applying presumptive prescription without considering the debtor’s objections regarding the validity and amount of the lawyer’s fees. The court emphasized that the debtor’s challenges to the credit were incompatible with relying on a presumption of payment.

The decision was overturned and the case was remanded to the Court of Appeal for reconsideration, with a different panel of judges, and for a ruling on legal costs.

Key Takeaways

• The exception of presumptive prescription is not applicable when the debtor disputes the underlying debt.
• Presumptive prescription operates as a procedural mechanism, shifting the burden of proof, rather than affecting the substantive law.
• Challenges to the amount or existence of a debt preclude the use of presumptive prescription as a defense.