domenica 18 novembre 2007

Ordine di esibizione ex art. 210 cpc, portata giuridica

La prova della girata a favore del creditore e del suo incasso può essere acquisita solo producendo copia dell’assegno posto all’incasso dalla banca trattaria, laddove la parte non ne abbia conservato copia, dato che solo in questo modo può desumersi la girata in favore del creditore, con conseguente ammissibilità dell’ordine di esibizione ai sensi dell’art. 210 c.p.c.”


TRIBUNALE DI TARANTO

SEZIONE DISTACCATA DI GROTTAGLIE

Giudice in composizione monocratica

( dott. Claudio Casarano - proc. n. 19-05)

la natura giuridica dell’ordine di esibizione ex art.210 c.p.c.

L’art. 210 c.p.c. nel rito ordinario non è un mezzo di prova che può essere disposto dal giudice d’ufficio; infatti, come dice chiaramente la lettera della norma può essere disposto solo in seguito alla richiesta di parte ed il richiamo al potere ispettivo ex art. 118, che invece contempla un mezzo di prova officioso, concerne il modus procedendi.

…quando non può costituire il mezzo per eludere il principio dell’onere della prova

L’affermazione ricorrente nella giurisprudenza della S.C. secondo la quale il mezzo di prova in parola non può costituire uno strumento per eludere il principio dell’onere della prova, in realtà può riguardare propriamente il processo del lavoro, nel quale ai sensi del combinato disposto ex art. 421-210 c.p.c. l’ordine di esibizione di documenti può assumere carattere officioso. E come tutti i mezzi di prova disposti d’ufficio dal giudice assume generalmente carattere residuale rispetto all’onus probandi ex art. 2697 c.c.-

E’ vero però, come sostiene la difesa del creditore opposto, che molte pronunzie del S.C. negano il ricorso all’art. 210 c.p.c quando è possibile la produzione di documenti da parte dell’onerato anche nel giudizio ordinario; dove, com’è noto, il principio della disponibilità della prova ha una portata più estesa rispetto al rito del lavoro.

la parte che non cura il rilascio di copia del documento può chiedere la sua acquisizione

al processo ex art. 210 c.p.c.? verifica dell’esistenza nell’ordinamento di una norma che obblighi la parte alla produzione del documento quando sia in grado di munirsene

Più in particolare, secondo la difesa opposta, nel nostro ordinamento opera il principio in virtù

del quale se del documento la parte aveva la possibilità di produrre copia, non può avvalersi del

potere di chiedere l’ordine d’esibizione ex art. 210.

Tale regola, tuttavia, non può essere accolta quando la parte per tempo abbia richiesto l’ordine di esibizione del documento della quale non sia in possesso, perché nella disponibilità di altri o per averlo smarrito.

Non sembra infatti che sia ricavabile dall’ordinamento una norma che obblighi il soggetto alla conservazione di un documento e che in caso di inosservanza possa seguire il diniego di tutela ( ex art. 24 Cost. – art. 2697 c.c.); un obbligo di conservazione può essere imposto dalla legge in casi determinati, come ad esempio per l’imprenditore commerciale con riferimento all’obbligo di conservazione delle scritture contabili.

Sul piano sostanziale poi solo quando la parte è tenuta per legge a dare la prova scritta di un contratto non è ammesso un mezzo di prova equipollente, quale la prova testimoniale(2725 c.c.), salvo pur sempre la perdita incolpevole( art. 2724, ult co., c.c.).

Al di fuori di queste ipotesi non sembra che possa imporsi alla parte di provare un determinato fatto esclusivamente con un documento che avrebbe potuto produrre ex se in giudizio se si fosse adoperata con la necessaria diligenza; così ad esempio in materia di contenzioso bancario il correntista quando non è in grado di produrre gli indispensabili estratti conto del rapporto intercorso con la banca, perché magari non più conservati, in mancanza peraltro di un obbligo giuridico a tenerli, come imposto invece alle banche, ben può chiedere per tempo l’ordine d’esibizione ex art. 210 c.p.c.-

la fattispecie in esame

Nel caso in esame si controverte della dimostrazione di un pagamento, del quale il debitore convenuto fornisce la prova prima con delle semplici ma insufficienti matrici e poi chiedendo l’ordine di esibizione di copia integrale di titoli alla banca al fine di accertare la girata in favore del creditore ed il suo incasso.

Effettivamente la prova della girata a favore del creditore e del suo incasso può essere acquisita solo producendo la copia dell’assegno posto all’incasso dalla banca trattaria; infatti solo in questo modo può desumersi la girata in favore del creditore. Ricorre quindi l’indispensabilità.

E’ vero come dice la difesa dell’opposto che la parte avrebbe potuto ex se fornirsi di copia dell’assegno, ma non desumendosi un obbligo siffatto dal sistema, ben può la stessa scegliere il mezzo equipollente previsto dall’art. 210 c.p.c.

E’ vero anche, come sostiene la puntuale difesa del creditore, che Cass. 9-05-1980 in un caso analogo afferma l’inammissibilità del mezzo ex art. 210 quando la parte interessata avrebbe potuto chiedere alla banca il rilascio di copia, ma è pur vero che in quella fattispecie si era tentato di ottenere il documento con un mezzo officioso del giudice, ossia attraverso l’informativa alla p.A. ex art. 213 c.p.c., nel presupposto che la banca fosse un istituto di diritto pubblico.

E’ evidente che la fattispecie è diversa da quella qui in esame; nel caso sottoposto al giudizio del S.C. infatti si voleva con un mezzo officioso colmare una vera e propria lacuna istruttoria in

dispregio del suo carattere residuale, come più sopra già rimarcato.

modalità dell’acquisizione del documento

Il mezzo di prova però non veniva ammesso ritualmente, secondo il procedimento contemplato

dall’art. 94-95 delle disp. di att. del codice di rito; infatti, era onerata la Cancelleria

dell’acquisizione documentale, alla quale non provvedeva.

La mancata acquisizione quindi, nonostante il tempo trascorso, non può essere imputata alla parte interessata.

E’ evidente poi che se non dovesse seguire l’acquisizione del documento, l’onerato ne dovrà subire le conseguenze, eventualmente anche ex art. 96 c.p.c., come richiesto da controparte.

P.T.M.

Ordina ex art. 210 c.p.c alla B.A – Filiale di Grottaglie - l’esibizione in giudizio di copia dei seguenti assegni( fronte e retro): il n. 0126807990, dell’importo di euro 2.800,00 del 15-11-03, emesso da P. M. in favore di V. B., ed il n. 0126807986 dell’importo di € 2.550.00 e del 1-09-2003, emesso da P. M. in favore di V. B.

Manda all’opponente per la notifica della presente ordinanza alla Banca entro il 15-11-2007.

Fissa per la prosecuzione del giudizio l’udienza del 20-02-2008.

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