Banking Law, Bonds, Conventional Default Interest, Supreme Court of Cassation, United Sections, Judgment of 18 September 2020 n. 19597
The Sections U., deciding on a matter of utmost particular importance, affirmed the following principles of law:
– The anti-usury discipline applies to default interest, intending to sanction the stipulation of excessive interest agreed upon at the time of signing the contract as consideration for the granting of money, but also the promise of any usurious sum is due in relation to the concluded contract.
– Failure to indicate interest in arrears within the T.e.g.m. does not preclude the application of ministerial decrees, which in any case contain the detection of the average rate applied by professional operators, statistically detected in an equally objective and unitary way, this being suitable to reveal that a clause on default interest is usurious, because “outside market ”, hence the formula:“ Tegm, plus the average increase in default interest, all multiplied by the increasing coefficient, plus the additional percentage points, provided as a further tolerance by the aforementioned decree ”.
– If the ministerial decrees do not even bear an indication of the average surcharge of the late payers, the term of comparison of the T.E.G.M. remains, as noted, with the increase provided therein.
– Art. 1815, paragraph 2, of the Italian Civil Code, so that the agreed default interest is not due, but art. 1224, paragraph 1, of the Italian Civil Code, with the consequent debt of interest to the extent of the fees lawfully agreed.
– Even during the relationship there is an interest in taking action by the funded person for the declaration of usuriousness of the agreed interests, taking into account the threshold rate at the time of the agreement; once the non-fulfillment and the prerequisite for the application of default interest have occurred, the assessment of usury relates to the interest actually applied after the non-fulfillment.
– In contracts concluded with a consumer, the protection provided for by art. 33, paragraph 2, lett. f) and 36, paragraph 1, of the consumer code referred to in Legislative Decree no. 206 of 2005, formerly Articles 1469-bis and 1469-quinquies of the Italian Civil Code.
– The burden of proof in disputes on the debt and on the extent of default interest, pursuant to art. 1697 of the civil code, assumes that, on the one hand, the debtor, who intends to prove the usurious entity of the same, has the burden of deducting the contractual type, the negotiation clause, the default rate actually applied, the any consumer quality, the measurement of the Tegm in the period considered, with the other elements contained in the ministerial decree of reference; on the other hand, it is the counterpart’s responsibility to attach and prove the amending or extinguishing facts of the other’s right.
Source Supreme Court of Cassation
