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Service of process during proceedings: a practical guide to Art. 138 and 170 c.p.c.
5 min read · Updated September 2026 · Editorial oversight: Avv. Federico Papa
The service of process remains one of the most critical stages in civil proceedings, as formal errors or selecting the wrong recipient can invalidate the entire trial. In the 2026 legal landscape, shaped by the Cartabia reform and legislative decree 164/2024, coordinating personal service with service to the counsel of record requires specific care. edit.legal provides an up to date overview on navigating Art. 138 and 170 c.p.c. to prevent challenges of nullity.
In brief
Correct service during proceedings follows specific rules: Art. 170 c.p.c. mandates service to the counsel of record for procedural acts, while Art. 138 c.p.c. governs personal service (notificazione in mani proprie), which remains relevant in 2026 for entities without a digital domicile. Validity hinges on compliance with the proof of service (relata di notifica) requirements, as affirmed by the Supreme Court in ruling 20275/2026. To avoid forfeitures, professionals must ensure the recipient matches the legal requirements for digital or paper transmission.
- 1.
Personal service under Art. 138 c.p.c.
Art. 138 c.p.c. defines the method of service ensuring the highest degree of legal certainty: delivery into the hands of the recipient (notificazione in mani proprie). The bailiff (ufficiale giudiziario) may execute service wherever the recipient is found within their district. If the recipient is located at their residence or office, service is perfected upon delivery. In 2026, while electronic service is the standard, analog service under Art. 138 c.p.c. remains essential when the recipient lacks a digital domicile (domicilio digitale) or if PEC service fails for reasons not attributable to the sender. It serves as the primary guarantee of actual knowledge of the document.
- 2.
Legal effects of refusing service
A crucial aspect of Art. 138 c.p.c. concerns the refusal to accept the copy of the document. If the recipient refuses delivery, the bailiff records this in the proof of service (relata di notifica). By law, such refusal is equivalent to a correctly executed personal service. This legal fiction prevents the party from voluntarily avoiding knowledge of the measure only to later claim nullity in court. It is a closing rule of the system designed to protect the serving party from the recipient's bad faith, ensuring that the trial can proceed regularly despite any obstructionism, while keeping the procedural deadlines linked to the service itself intact.
- 3.
The role of the counsel of record under Art. 170 c.p.c.
Once a party has formally appeared in court through a lawyer, Art. 170 c.p.c. establishes that all services and communications during the proceedings must be directed to the counsel of record (procuratore costituito). Delivery of a single copy to the counsel is sufficient even if they represent multiple parties. In 2026, this service occurs almost exclusively via certified email (PEC) to addresses found in public registers like ReGIndE. Paragraph 4 of Art. 170 c.p.c. further specifies that pleadings (comparse) and briefs (memorie) may also be communicated by filing them in the electronic case file (fascicolo telematico), producing the same effects as a court clerk communication, significantly simplifying the exchange of documents.
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4.Mandatory exceptions to service on counsel
Despite the general rule of Art. 170 c.p.c., the law mandates that certain documents must still be served personally on the party. These mandatory exceptions include orders granting formal interrogation (interrogatorio formale) or the decisive oath (giuramento decisorio). Furthermore, documents addressed to a party in default (parte contumace) must follow the rules of Art. 292 c.p.c., often requiring personal service if electronic means are unavailable. Ignoring these exceptions and erroneously serving only the lawyer exposes the document to irreparable nullity if the party fails to appear, as the requirement for direct knowledge is bypassed for acts involving the disposal of rights or statements of fact.
- 5.
Proof of service requirements and Supreme Court trends
Recent caselaw, such as Supreme Court ruling no. 20275/2026, has reaffirmed that the validity of service strictly depends on compliance with the requirements of the proof of service (relata). For instance, omitting the name of the counsel of record in the relata for a judgment can prevent the short deadline for appeal (termine breve) from starting, making the service ineffective for that purpose even if delivered to the law firm. Although Art. 156 c.p.c. allows for the curing of defects if the purpose is achieved (raggiungimento dello scopo), this often operates ex nunc (from now on), failing to protect against forfeitures already incurred. It is vital for the sender to specify the recipient's capacity and the relevant statute.
- 6.
Managing PEC service failures
In 2026, if service to the counsel fails due to reasons attributable to the recipient, such as a full PEC mailbox, the serving lawyer no longer has to accept ineffectiveness. Following the procedures of the Telematic Services Portal (PST) and Art. 149-bis c.p.c., the lawyer must upload the document to the portal's reserved area. Service is deemed perfected ten days after the upload. This procedure ensures that a recipient's negligence in managing their digital domicile does not harm the opposing party. However, the distinction between attributable and non-attributable causes remains the core of litigation regarding electronic service, requiring a precise technical analysis of system status messages.
- 7.
AI-driven compliance checks
Artificial intelligence acts as a technical supervisor for compliance in proofs of service. Models can parse mandatory requirements, such as Law 53/1994 references or the source of the PEC address (e.g., INI-PEC). AI can compare certification formulas with 2026 ministerial templates, flagging risky linguistic discrepancies. Furthermore, it assists in interpreting error codes from non-delivery messages, suggesting whether to proceed via PST or through a bailiff. edit.legal supports professionals by providing tools for drafting compliant documents and access to verified sources, reducing the risk of formal oversights, while maintaining the lawyer's duty of final validation.
References: Articolo 138 c.p.c.Articolo 170 c.p.c.Articolo 149-bis c.p.c.Articolo 292 c.p.c.D.Lgs. 164/2024Legge 53/1994Cassazione Civile, sez. I, n. 20275/2026
Frequently asked questions
What happens if service is made to the party personally instead of the counsel of record?
According to Art. 170 c.p.c., service made personally to a party who has already appeared is null. However, this nullity can be cured if the party appears or if the document achieves its purpose, though such curing might not prevent forfeitures already incurred regarding the short deadline for appeal.
Is the refusal of paper service under Art. 138 c.p.c. still valid in telematic proceedings?
Yes, in cases where service must or can be executed in analog mode (for instance, for entities not required to have a PEC), the refusal to accept the document recorded by the bailiff is equivalent to personal service, maintaining full legal efficacy even in 2026.
How is service to the counsel via PEC proven?
Proof is provided by attaching the acceptance and delivery receipts (ricevute di accettazione e consegna). It is essential that the electronic proof of service indicates the court, the parties, the sender's tax code, and the public register from which the recipient's address was extracted, as per current regulations.
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