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Reasons for Decision
1. The first reason, the applicant relies on the failure and / or inadequate reasoning about key points, in reference to art. 645, paragraph 2, 647 CPC, arguing that the appeals court would uncritically resting on the orientation of legitimacy of law, without regard to the relief, raised in the appeal, because that would make the abbreviation of the words assigned to the creditor to appear opposite requires a conscious expression of will of the opponent of the option provided for by law, made either explicitly or inferred from conclusive evidence. In the present case were not adequately assessed the situation that the term was assigned to appear only seven days less than the minimum and that the constitution took place on the ninth day, which had to lean towards a clerical error in calculating the period of appearance. considered irrelevant to the error introduce a rebuttable presumption of the exercise of an abbreviation of the terms for the opponent is not allowed by law, turning right into an obligation. In addition, the applicant states that the prediction of the renewal of summons (Art. 164 CCP) in the case of assignment of a term less than the law should also be applied in the trial of opposition to injunction, which is an ordinary court of cognition, is insufficient reference to the specialty of the rite to justify the imposition of a penalty, such as that of admissibility.
its second plea, alleging infringement or misapplication of Article. 645, paragraph 2, with reference to art. 647 CCP, it is argued that the trial of opposition, according to art. 645 Code of Civil Procedure shall apply the discipline of regular procedure and therefore if formal proceedings, not failure, but merely delayed, the penalty is not justified dell'improcedibilità case, applied only to the appeal proceedings article. 348 cpc , as amended by Law No 353, 1990. It is also reported substantial inconsistency in holding inapplicable to the specialty of the ritual, art. 164 cpc doing at the same time application of the provisions of art. 165 and 163 bis cpc
The third reason, the applicant submits false or incorrect application of Article. 645, paragraph 2, Code of Civil Procedure would not be correct because the extent of reduction of the period provided for by the constitution. 165, for the case where the court has authorized the reduction of the minimum to appear, a situation in which, reducing the time for appearance is a result of mere choice of a party.
2. The reasons given by the applicant, in part developed and implemented an interim order of the First Civil Chamber, are not adequate to justify a change in the constant guidance of the court, although, as will be explained later, it is appropriate to make a clarification. Apart from a single dating previous hand, remained completely isolated (Cass. January 10, 1955 No. 8), the Court's jurisprudence has been consistent in saying that when the opposing party has exercised the option to specify a time of summons under to the ordinary, the deadline for its toughness is automatically reduced to five days of service of a summons In contrast, half of the period of ordinary Constitution (the principle stated in Article force. 645, as amended by art. 13 of Presidential Decree No 597 of 1950 beginning with Cass. October 12, 1955, No 3053 and Following a consistent, most recently, see Cass. No 3355/1987, 2460/1995, 3316 and 12044/1998, 18942/2006).
More recently, in the context of this guideline, it is further stated that the abbreviation of the term constitution for the opponent automatically follow the objective fact of the grant as opposed to a period of lower than normal appearance, it is irrelevant that the setting of this term depended on both a conscious choice or by miscalculation (Cass. No 3752/2001, 14017/2002, 17915/2004, 11436/2009).
Contrary to what was deemed to be a part of the doctrine guidance mentioned here is not without the necessary legal basis.
fact, if it is true that in the original code of '42, art. 645, paragraph 2 provided for a reduction to half of the terms "constitution", while the reduction in the current wording of the provision refers only to the mid-terms of "appearance" from the legislative history does not, however, that the text has been modified introduced to resize the accelerator function of cutting in half the time of creation given in the framework previously in force, but only that the rule had been imposed as a necessary consequence of the introduction of the summons to the hearing fixed.
There is, however, no objective reason to justify the opposite opinion which considers that the silence of the legislature in order to discipline the terms of the constitution, against the express provision in the legislation previously in force, is significant of the desire to change the rule expressly established by art. 165, paragraph 1, Code of Civil Procedure, which establishes a link between terms of attendance and terms of the Constitution in order to provide consistent the system in cases requiring prompt treatment. It follows that this rule can hardly be considered of an exceptional nature or derogatory, but the expression of a general principle of rationality and consistency with the result that the express reference in Art. 645 of this principle would be entirely superfluous.
Nor does it seem decisive importance, undoubtedly correct, the difference between the case in art. 163 bis, paragraph 2, Code of Civil Procedure, in which the consequence is an abbreviation of the terms by the court of the existence of reasons for a speedy handling of the case proposed by the plaintiff, and that in art. 645 CPC, in which this appreciation is taken (not by hand, as argued by the referral order, but directly) by the legislature once and for all, being identical in both cases the function of halving the terms of appearance, form, on firstly, to meet the needs of acceleration of proceedings and the other, in the opportunity to balance the compression of the terms available to the defendant with the reduction in terms of establishment of the actor.
Since the peaceful existence of the need calls for discussion of the opposition, to enable verification of the validity of the measure summary obtained by the creditor ex parte, it must be observed that there is also a need to balance the positions of the parties, while taking into account the peculiarities of the opinion that the opposition, as is known, the nature of a full assessment of cognition that devolves to the court the full examination of the opposition of relationship in dispute, and not simply a preliminary review of the legality of the decree order. It is also undisputed that, unlike the formal qualities, and the opposing positions are those of the opposite, respectively, defendant and plaintiff in a substantive way. Now, although the opposite has had plenty of time to set its position before asking for the case the injunction, it remains true that, faced with allegations and evidence produced or requested by the opponent, the opposite was the need to evaluate them in order to prepare his defense and to this end there is a need to have the documents available on which it is cited in the shortest time possible, to balance the sacrifice of the term at its disposal to assess the trials and their joint hearing before the formal proceedings.
What is certain is that certainly needs to calls for better treatment of the opposition proceedings would be met if more than half of the reduction in terms of establishment of the opponent the legislature had also reduced by the fair terms of establishment of the opposite, but that are fairly large (thirty-five days of notification of the opposition and that is ten days before the hearing to be fixed at not less than forty-five days from the notification , pursuant to art. 166 CCP), but this opportunity to indulge "eurythmy system (court cost. No 18/2008), does not affect the validity of the ground that the opponent's half of the terms of the constitution , however, is an, albeit partial and perhaps unsatisfactory, being accelerated procedure.
3. Part of the doctrine, echoed the order of the First Civil Chamber, noted that the wording of Article. 645 cpc suggests that halving the time for appearance is a legal consequence of bringing the opposition and not to depend instead on the will of the opponent intends to assign a shorter period than that prescribed by. 163 bis cpc
Indeed needs certainty and thus to guarantee the parties, before the imposition of time under penalty of prosecution of the opposition, has already led to introduce traditional orientation, based on the optional nature of the concession on the part of 'opponent to appear for a period less than the legal one, the temperament made by the emergence of irrelevance of the will of the opponent that could have given a shorter period if only by mistake.
They believe that the requirements of sections merged systematic coherence, as well as practical, justify the claim that not only the terms of the constitution and the opposite of the opponent shall be automatically reduced to half in the opposite case of an actual assignment of a term to appear less than the legal one, but that this effect is automatic consequence of the fact that the opposition is only debunks the proposal, as the art. 645 Code of Civil Procedure provides that in any case Opposition to the terms to appear to be reduced in half. If, however, in which the opponent sets a deadline for an appearance equal to or greater than the legal one, still saves the power of the opposite, formed within dimidiato, the anticipation of the hearing to ask for an appearance in accordance with Article . 163 a, third paragraph.
On the other hand, if indeed the halving of the terms of the constitution depended on the opponent's willingness to assign a deadline to appear less than the legal one, you do not understand the reason why, according to the jurisprudence of this Court, cumulatali halving are derived from abstract legal provision in art. 645 cpc, what can derived using a proper measure of halving of the terms required under art. 163 bis, paragraph 3. (Cass. No 4719/1995, 18203/2008).
Nor could lead to different conclusions, the observation that if it is considered irrelevant to the opponent's will assign a deadline to appear less than the legal one, it might raise the question that the sacrifice of his term of constitution can not be justified, the light art. 24 cost. As may be inferred from the court cost. No 38/2008. In fact, the legal effect of halving the terms of establishment of the opponent, an official of the opposition is simply because of the proposition, it is also always an effect from the choice of the debtor can not not know what the consequences of the proceedings that the law attaches to his initiative.
I far down, the different sizes of the terms of the constitution of the opponent than the opposite would not appear unreasonable given that the constitution is the first post-processing of the defensive line that has already resulted in the act of opposition to the in court that the constitution does not require the completion of a simple material activity, while in time for its establishment, the opposite is not called simply to reiterate the reasons for his application for an order, subject to processing in stage prior to the commencement of the action for injunction, but the need to evaluate the allegations and the evidence submitted by the opposing party to formulate its response.
4. and consolidated approach to European Court in the trial of opposition to injunctions, the late establishment of the opponent should be treated in the failure to establish and involves the admissibility of the opposition (Cass. n. 9684/1992, 2707/1990, 1375 / 1980, 652/1978, 3286/1971, 3030/1969, 3231/1963, 3417/1962, 2636/1962, 761/1960, 2862/1958, 2488/1957, 3128/1956). It is undeniable fact, on the one hand, that the specialty of the rule in art. Cpc 647 prevents the application of ordinary rules of the process of cognition, and second, that the constitution is nothing but a late failure to establish within the time specified by law. The applicant has not proposed decisive reasons that may lead the Court to depart from that approach. In conclusion, the appeal must be dismissed.
There are good reasons in relation to the existing debate on issues addressed by this court, to offset costs.
PQM
The Court rejects the appeal and award costs.
Deposited in Court Registry on 09.09.2010
In its ruling 
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