Garanzia per vizi della cosa venduta e onere probatorio

The Joined Chambers of the Supreme Court (2019) ruled that, in “building actions” governed by Articles 1490 and 1492 of the Civil Code, it is up to the buyer to prove the existence of the reported defects and not to the seller to demonstrate having delivered a good that is free from them. In such actions, in fact, the delivery of a defective good does not con-stitute in breach of an obligation of the seller, therefore the burden of proof requires a different discipline than the one governing the obligatory relationships, according to which when the creditor complains about the non-fulfillment, it is up to the debtor to demonstrate to have acted correctly. However, the fact that the burden of proof is on the buyer does not seem to find its rationale in the peculiar nature of the “warranty for defects”, since this is not extraneous to the area of contractual responsibility; but, above all, because also in the actions consequent to the lack of conformity, aimed at asserting non-fulfillment, the burden of proof is, as a general rule, on the buyer.