Banking contracts, standard guarantees agreed between bank and client, nullity and forfeiture of rights, Supreme Court of Cassation (Joint Civil Chambers), Judgment No. 24825 of August 28, 2026.

Standard guarantees agreed between bank and client – ​​Clauses regarding revival, supervening obligations, and derogation from Art. 1957 of the Civil Code, reproducing the ABI (Italian Banking Association) model – Clauses issued outside the 2002–2005 period – Determination of nullity arising from agreements restricting competition – Judge’s duty of assessment – ​​Existence thereof – Relevance of the administrative finding contained in Bank of Italy Order No. 55 of 2005 – Conditions.

Guarantee – Clause exempting the parties from the time limits set forth in Art. 1957 of the Civil Code – Nullity due to being the subject of agreements or concerted practices unduly restricting competition in the relevant market – Co-existing “payment on first demand” clause – Forfeiture of rights – Out-of-court demand sent to the guarantor within the time limits of Art. 1957 of the Civil Code – Relevance – Conditions.

Summary of the outcome

The Joint Civil Sections were called upon to resolve the following questions of law:

«1. Whether a guarantee containing the clauses regarding revival, survival, and derogation from Article 1957 of the Civil Code—clauses censured by the Bank of Italy in sanctioning decision no. 55 of May 2, 2005—may be considered functionally linked to the anticompetitive agreement sanctioned by the supervisory authority, and thus deemed void, even if issued outside the 2002–2005 period covered by the Bank of Italy’s investigation; and, if so, whether such nullity can be established simply by pointing out that the specific guarantee reproduces the revival, survival, or Article 1957 derogation clauses found in the standard form drafted by the Italian Banking Association (ABI) and censured by the Bank of Italy in decision no. 55 of May 2, 2005, or whether, conversely, the functional link between the specific guarantee and the anticompetitive agreement sanctioned by the supervisory authority must be proven in some other way.

2. Whether a guarantee containing the clauses regarding revival, survival, and derogation from Article 1957 of the Civil Code—clauses censured by the Bank of Italy in sanctioning decision no. …No. 55 of May 2, 2005, can be said to be linked by a functional connection to the anticompetitive agreement sanctioned by the supervisory authority, and thus deemed void, even if issued for a specific transaction and not falling within the category of “omnibus” guarantees; and, in the affirmative, whether such nullity can be considered proven simply by highlighting the reproduction—within the individual guarantee—of the clauses regarding revival, survival, and derogation from Article 1957 of the Civil Code (clauses included in the standard form drafted by the ABI and censured by the Bank of Italy in sanctioning decision No. 55 of May 2, 2005), or whether, conversely, the functional connection between the individual guarantee and the anticompetitive agreement sanctioned by the supervisory authority must be proven in some other way.

3. Whether, within the scope of a guarantee agreement incorporating clauses regarding reviviscence, survival, and derogation from Article 1957 of the Civil Code—clauses censured by the Bank of Italy in sanctioning order no. 55 of May 2, 2005—and once the nullity of such contractual provisions and the applicability (or revival) of the Civil Code’s default rules have been established, a stipulation providing for payment upon simple written request (likewise contained in the guarantee text) is sufficient to grant the creditor the right to avoid the forfeiture of rights under Article 1957 of the Civil Code by means of a mere out-of-court demand, without the need to initiate judicial proceedings.

With regard to the first two questions, the Joint Chambers, in stating the principle of law pursuant to Art. 363-bis of the Code of Civil Procedure, stated that:

“«In the case of a specific suretyship incorporating clauses regarding reviviscence, survival, and derogation from Article 1957 of the Civil Code—established either prior to or subsequent to the timeframe covered by Bank of Italy Order no. 55 of 2005—the trial judge must determine, within the scope of their own review, whether the contractual model employed corresponds to an agreement or concerted practice that restricts competition—thereby rendering the ‘downstream’ guarantee void pursuant to the principles set forth by the Joint Chambers in Judgment no. 41994 of 2021—while utilizing the aforementioned administrative finding as an element of proof (albeit one insufficient on its own), following an assessment of its content and scope regarding timeframes and subject matter extending beyond those strictly covered by the administrative finding itself»”.

Regarding the third question, the Supreme Court held that:

“«Where a guarantee contains a ‘payment on first demand’ clause, the creditor avoids the forfeiture of rights—even by means of an out-of-court demand sent to the guarantor within the time limits set forth in Article 1957 of the Civil Code—provided that such a demand is made within those limits; this applies even if a concurrent clause exempting the parties from compliance with said time limits has been declared void because it was the subject of agreements or concerted practices that unduly restricted competition in the relevant market»”.

Source Supreme Court of Cassation