The condition of reciprocity in the Italian Law

Introduction

Foreign citizens who fall in love with Italy and here intend to purchase a real estate, or want to carry out other types of operations is constantly increasing.

One of the prerequisites to be checked in order to serenely reach the deed of purchase and sale is the possibility for the foreign buyer to carry out this type of negotiation activities in our country.

Among these checks, a key space is devoted to the existence of the condition of reciprocity.

The condition of reciprocity

At the supranational level, the condition of reciprocity is framed by the Private International Law Act (Law 218/1995).

On the domestic level, on the other hand, it is enshrined in Article 16 of the Pre-Laws, which makes it possible for a foreigner to enjoy in Italy the same civil rights that an Italian citizen can enjoy in the foreign citizen’s home state.

In addition, the principle is also defined by the Supreme Court as a “condition for the effectiveness of the rule that confers a right on the foreigner,” which also specifies how reciprocity is relevant “not as a foundation of the right, but as a condition for the effectiveness of the said rule” (Cass. SS.UU. Sent. March 18, 1999 No. 147).

Why is the verification of the condition of reciprocity so important?

The verification of the presence of the condition of reciprocity is crucial because it determines the actual ability of the foreigner to carry out business transactions within the Italian country.

According to the majority orientation, a transaction made by a foreigner lacking this capacity is vitiated by nullity that cannot be remedied, indeed. A different orientation embraces the less rigid theory of the ineffectiveness of the act; but even in the latter case the consequences would not be positive because the act could retain some of its effects, but not within Italian territory.

The reciprocity and the fundamental rights

Reciprocity is a necessary condition only when it comes to non-fundamental rights of the person.

When it comes to fundamental rights of the person, on the contrary, the verification of the existence of this condition is not necessary, since these rights are guaranteed in any case, even to foreigners.

Fundamental rights can include those enshrined in our Constitutional Charter, such as the right to health or life.

What to analyze: the types of reciprocity

It becomes clear that prior to a deed, where a party is a foreign citizen, it is necessary to make the necessary verifications.

The analysis must take into account the presence of different types of reciprocity:

– substantive: in the absence of a bilateral agreement or other provision of law, the actual possibility for the Italian citizen to exercise the same rights as the foreigner in the latter’s country is verified;

– legislative: verification of the existence in the legal system of the foreign citizen, of a norm that recognizes to the Italian citizen the exercise of the same right; – diplomatic: verification of the existence of international agreements between states that equalize the citizens of each state.

Reciprocity, natural persons and legal persons

First, here below, a briefly define the two figures:

– natural persons: any living human being, without distinction;

– legal persons: a subject of law composed of both natural persons and property, aimed at achieving a common end, to which the legal system recognizes a legal capacity.

By the express provision of Article 16 of the Pre-Laws, the condition of reciprocity is required for both.

What to do

It is important to pay special attention to this test for several orders of reasons.

First, because the condition of reciprocity is not present for all foreign nationals indiscriminately; furthermore, this condition may apply only to some acts, not to all; and lastly, the prerequisites for its presence may change over time.

Therefore, it is always necessary to conduct a thorough specific verification from time to time.