Banking contracts, Nullity of fidejussion contracts, Uniform conditions prepared by ABI, Civil Cassation, First Section, Interlocutory Ordinance n. 11486 of 30/04/2021

The First Civil Section handed over the documents to the First President, for the eventual assignment of the case to the United Sections in relation to the question, considered to be of the utmost importance, concerning the nullity of contracts stipulated in compliance with restrictive agreements on competition, in order to verify its applicability to bank guarantees given in compliance with the uniform conditions prepared by ABI, and in particular to establish:

a) whether the total or partial coincidence with the aforementioned conditions justifies the declaration of nullity of the clauses accepted by the guarantor or only legitimizes the exercise of the action for compensation for damage;

b) in the first case, what is the regime applicable to the nullity action, in terms of the type of defect and the legitimacy to enforce it;

c) whether a declaration of partial nullity of the surety is admissible;

d) whether the investigation requested for this purpose must have as its object, in addition to the aforementioned coincidence, the potential willingness of the parties to equally give their consent to the issue of the guarantee, or the exclusion of a change in the interest structure deriving from the contract.

Source Supreme Court of Cassation