Cassation: Curing effect of the defendant's appearance in a null summons

1. The facts

   According to reports from Cassazione.net and Professione Giustizia, the case originates from a civil dispute where the plaintiff had served a summons lacking the new warning required by the Cartabia Reform (Art. 163, paragraph 3, no. 7 c.p.c.) regarding procedural forfeitures. The defendant, despite choosing to appear in court to avoid further prejudice, immediately raised an objection regarding the nullity of the summons, requesting the scheduling of a new hearing to benefit from full defense terms. The lower courts, both in the first instance and on appeal, had rejected the motion, considering that the defendant's appearance had resulted in a full cure and that the right of defense had nonetheless been guaranteed by the filing of the statement of defense. The matter thus reached the Court of Cassation, tasked with determining whether the remedy for achieving the purpose automatically excludes the right to schedule a new hearing when the defendant expressly requests it.

2. 

   The rules at play

   The regulatory core of the decision lies in the interaction between two fundamental articles of the Code of Civil Procedure.

   1. Art. 163, paragraph 3, no. 7 c.p.c. requires the plaintiff to include the warning about the forfeitures the defendant incurs in case of late appearance, with particular reference to the new bars introduced by the 2022 legislator.
   2. Art. 164 c.p.c. governs the defects of the summons: the third paragraph states that the defendant's appearance cures the defects with ex tunc (retroactive) effect, but specifies that if the defendant alleges non-compliance with the appearance terms or the lack of warning, the judge must set a new hearing. This provision aims to balance the validity of the establishment of the procedural relationship with the need for the defendant not to be forced into a rushed or incomplete defense due to a deficient introductory act.

3. What the jurisprudence says

   The jurisprudence of the Supreme Court has traditionally emphasized the principle of instrumentality of forms, whereby an act cannot be declared void if it has nonetheless achieved the purpose for which it was intended. However, with the order under review, the Court clarified that this principle cannot translate into a compression of defense rights. The established orientation distinguishes between the validity of the claim, which is preserved by the retroactive remedy, and the right to the term, which is instead autonomous and unaffected by mere appearance if the objection is raised. The Cassation specified that the judge's obligation to set a new hearing is not subject to proof of concrete damage suffered by the defendant: the law presumes that the missing warning prejudices the right of defense, making the setting of the new hearing a mandatory and not discretionary act of the magistrate.

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8. What it teaches professionals

   1. Template update: it is essential to verify that every summons contains the new Cartabia warnings in full to avoid unnecessary postponements and delays.
   2. Defendant strategy: timely appearance does not preclude the right to terms, provided that the objection of nullity is formulated with precision and immediacy.
   3. Judge's oversight: magistrates must avoid forcing the trial to proceed in the presence of void summons, as saving one hearing today can cause the nullity of the entire judgment tomorrow.
   4. Managing the postponement: the professional must be ready to recalibrate the defense within the new terms granted, taking advantage of the time gained through the objection.

References: Art. 163 c.p.c.Art. 164 c.p.c.D.Lgs. 149/2022

Editorial oversight: Avv. Federico Papa·ICAMUpdated 11 October 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction