Bank contracts, Mortgage loan, Fundability limit, Essential element, Rule on the setting of the limit, Nature, Civil Cassation, United Sections, Judgment n. 33719 of 11/16/2022

Article 38, paragraph 2, of Legislative Decree no. 385 of 1993.

Mortgage loan – Financing limit pursuant to art. 38, paragraph 2, of Legislative Decree no. 385 of 1993 – Essential element of the land loan – Exclusion – Foundation – Rule on the fixing of the limit – Mandatory nature – Exclusion – Reasons.

The United Civil Sections, deciding on a matter of contrast and of principle of particular importance, affirmed: that in terms of land loans, the limit of financeability pursuant to art. 38, paragraph 2, of Legislative Decree no. 385 of 1993, is not an essential element of the content of the contract, as it is not a rule determining the content of the contract or placed to safeguard its validity, but a merely specific or supplementary element of its object; which does not integrate the mandatory provision – which is the one with which the legislator has delegated to the Banking Supervisory Authority to set the limit of financeability in the context of “prudential supervision” (cf. articles 51 et seq. and 53 T.u.b.) – the violation of which, if placed at the basis of the nullity (and the overwhelm) of the contract (in this case, of the loan already disbursed which should also result in the loss of the connected mortgage guarantee), could lead to the result of jeopardizing precisely the interest that the regulation was intended to protect, which is that of the bank’s capital stability and the containment of risks in the granting of credit.

Source Supreme Court of Cassation