Contract in general, Contractual autonomy, Leasing contract, Worthiness of protection of interests, Standards, Civil Cassation, United Sections, Judgment n. 5657 dated 02/23/2023

Worthiness of protection of interests – Evaluation – Standards – Leasing – Determination of the rent with indexation clause to a financial rate and to an exchange rate – Unworthy – Exclusion – Nature of implicit derivative financial instrument – Exclusion.

Article 1322, paragraph 2, of the Italian Civil Code; Legislative decree no. 58 of 1998, Consolidated Law on Finance – TUF; Article 363, paragraph 3, of the Code of Civil Procedure (principle formulated in the interest of the law)

The United Civil Sections, deciding on a matter of particular importance, have affirmed the following principles:

a) the judgment of “undeservingness” pursuant to art. 1322, paragraph 2, of the Italian Civil Code it must be performed having regard to the purpose pursued by the parties and not to the convenience, clarity or uncertainty of the contract;

b) the clause included in a leasing contract – which provides that:

I) the amount of the fee varies according to both the variations of a financial index and the fluctuations of the exchange rate between the domestic currency and a foreign currency;

II) the monthly amount of the fee remains nominally unchanged and the debit/credit relationships between the parties dependent on the aforementioned fluctuations are regulated separately – it is not an undeserving agreement pursuant to art. 1322 of the Italian Civil Code, nor does it constitute an implicit “derivative financial instrument” and, therefore, the relative agreement is not subject to the provisions of Legislative Decree no. 58 of 1998 (principle formulated in the interests of the law pursuant to art. 363, paragraph 3, of the Code of Civil Procedure).

Source Supreme Court of Cassation