Company Law, Banking, Corporate Mergers, Current Account Remittances, Bank account balance pledge, Court of Cassation, I Civ. Sec., Order n. 5481 of 07/03/2018

Current account repayments, mergers between companies, irregular pledges or regular pledges.

In terms of fusion,

as stated among the last ones in the pronunciation 1376/2016, referring to the pronunciation of the Sec. 19698/2010, regarding the merger, art. 2504 bis of the Italian Civil Code, introduced by the reform of company law (Legislative Decree No. 6 of 2003), has an innovative and non-interpretive nature and, therefore, the principle, which can be deduced from it, whereby the merger between companies results in an affair merely evolving – modifying the same legal entity, which retains its identity, even in a new organizational structure, does not apply to mergers (by union or incorporation) prior to the entry into force of the new discipline (January 1, 2004), which, while giving rise to a succession phenomenon, however, they diversify from the succession “mortis causa” because the change in the corporate organization depends exclusively on the will of the participating companies, so that the less is not affected by the continuation of a process of which was perfectly aware, and no prejudice suffered by the incorporating (or the company resulting from the merger), which can intervene in the process and decision.

Bank account balance

The non-revocability of the sums resulting from the enforcement of the pledge established on the deposit booklets opened by the debtor at the same bank can only be affirmed in the case of the irregular pledge, characterized by the conferment expressed to the creditor to dispose of the relative sum.

In fact, as stated in the latest ruling of 8/8/2016 n.16618, the pledge of bank account balance made in favor of the custodian bank is considered an irregular pledge only when the bank is expressly empowered to dispose of it. of the relative sum, while, in the event that the conferment of this right is defective, it falls within the regulation of the pledge, for which the guaranteed bank does not acquire the sum carried by the balance, nor is it obliged to return the “tantundem” to the debtor “, so that, if the conditions for the compensation of the passive exposure of the customer with a corresponding pecuniary obligation of the bank are lacking, the forfeiture of the sum consequent to the enforcement of the pledge falls within the scope of application of art. 67 law fall. and is subject to bankruptcy revocation.

And similarly the previous ruling of 12/9/2011, n. 18597, which stated that in the event that the client of the bank, as a guarantee of its fulfillment, binds a title of credit or a legitimation document identified, also to the bearer, and does not give the bank the power to dispose of the relative right, it goes beyond the hypothesis of the irregular pledge and falls within the discipline of the regular pledge (articles 1997 and 2787 of the Civil Code), according to which the bank does not acquire the sum brought by the title or the document, with the obligation to to pay the related amount, but is required to return the title and the document: in this case, the creditor assisted by a pledge is required to slip into bankruptcy, pursuant to art. 53 bankruptcy law, for the satisfaction of one’s own credit, having to exclude compensation, which instead operates in the irregular pledge as a typical way of exercising the pre-emption; therefore, in the hypothesis of satisfaction of the bank through the forfeiture of the sum brought by the booklet offered as a pledge, the conditions for the exercise of the bankruptcy revocatory action ex art. 67 law fall.

Now, the applicant Bank has inferred in the appeal that in the case it was an irregular pledge, given the provisions of Article 8 of the deed of pledge, but did not indicate when and by what act it had relied on this contractual provision to the purpose of proving the existence of the irregular pledge, nor does it result from the sentence that the party had deduced the irregular nature of the collateral and paid in the judgment the contractual provision which would be used late and therefore inadmissibly in the present judgment of legitimacy.

Source Supreme Court of Cassation