Personal guarantees, Letters of patronage, Guarantee commitments with banks, debts contracted by commercial companies, insurance company, company by-laws, admissibility of single guarantees, Civil Court of Cassation, Sec. 1, Ord. n. 384 of 10/01/2018

Essential lines of the arguments of the Supreme Court of Cassation

against sentence no. 4562/2010 of the CORTE D’APPELLO of ROME, filed on 08/11/2010

FACT AND LAW

1.- The … …….. in compulsory administrative liquidation occurs for cassation against the s.p.a. … … Assicurazioni, carrying out six reasons against the sentence handed down by the Court of Appeal of Rome on 8 November 2010.

Confirming for what the ruling of the Court of Rome n. 20213/2005, the Territorial Court found four letters of patronage valid and effective at the time issued by … … in favor of bank credit data and for debts incurred by certain commercial companies.

As a result of this, ……. Insurance – which had also signed the guarantee commitments (in the person of … ..International, spa then incorporated) – was admitted to the liabilities of the compulsory liquidation procedure for the quota of the recourse credit deriving from having paid the sums to the beneficiaries of the indicated commitments.

With regard to the appeal, it resists … ..Insurance, which has deposited a specific counter-appeal. The latter also filed a memory pursuant to art. 380 bis cod. proc. civ.

3.- The first plea, the third plea and the fourth plea must be treated jointly, because of the substantial thematic homogeneity that binds them.

All these grounds of appeal have, in fact, as their basic assumption the thesis that the provision of personal guarantees (as deriving, here, from the issuance of letters of patronage) is – as such – an act extraneous to the activity properly performed by an insurance company.

The first and third motives then focus, in particular, on the problem of the fate of the act – extraneous to the performance of the insurance activity – in terms of the law that specifically regulates the action of the companies authorized for the related exercise . The fourth plea deals, on the other hand, with the same profile from the visual angle of the rules governing the organization of the action of joint-stock companies.

In relation to these acts – deemed, in fact, as unrelated to the insurance business and / or extraneous to the corporate purpose specifically outlined by the bylaws – the appellant claims that they are affected by the defect of radical invalidity pursuant to art. 1418 cod. civ.

And he affirms that, as a result, … Insurance would have to pay nothing to the beneficiary banks of the guarantee commitments and that, in any case, the same does not have any right of recourse for the recovery of what has been paid.

4.- The United Sections of this Court have not long been occupied – with immediate reference to the profile constituted by the act unrelated to the business of insurance business – of a situation homologous to that which is being examined here.

The sentence of 30 December 2011, n. 30174 noted, in this regard, that “the prohibition imposed on insurers to limit their corporate purpose to insurance and related activities (Article 5 of the Law of 10 June 1978, No. 295, applicable” ratione temporis “) does not prevents them from carrying out single acts not of an insurance nature, provided that this does not result in a systematic activity involving the assumption of an independent and extreme entrepreneurial risk with respect to that typical of the insurer “.

In particular, acts “involving the assumption of guarantee obligations … in themselves alone do not in any way connote any business activity”. «The assumption of guarantees for third party debts could assume the connotations of an extra-insurance business activity, if it were carried out in a systematic way and towards an indeterminate audience of subjects, coming to assume the appearance of a financial activity» . Not already otherwise. Not, in particular, when the provision of individual guarantees is put in terms of “connection and instrumentality” with the activity properly carried out by the company.

“It follows that the guarantee given by an insurance company in favor of a non-insurer-controlled company does not incur the aforementioned prohibition, since it is instrumental to the preservation of the value of the shareholding of which the guarantor is the holder, and as such aimed at safeguarding the interest of the corporate group as a whole “.

Along with these principles, the decision of Cass., October 7, 2015, n. 20107.

5.- The Board believes to give continuity to the jurisprudential address that has come to develop. The Board also considers that the substantive rule, which has just been identified, also applies in relation to the corporate profile that this subject proposes. Because the above reasoning has a manifest general vocation. It would not be reasonable, moreover, to think that – assuming a given notion of a deed outside the company’s scope for the regulation of the insurance company – the same is not valid also for the profile of the company’s organizational regulation which business activity plays.

In the present case, moreover, it results – according to the findings of the contested judgment – that the Statute of the s.p.a. … .. expressly contemplates the possibility of carrying out “all operations, including guarantees, inherent to the social goals and which facilitate their fulfillment” (the reference to the “guaranty” constituting, to the evidence, a synecdoche).

6.- The second ground of appeal assumes that the Territorial Court, if it “correctly identified the individual grounds for censorship” concerning the “validity and effectiveness of the obligations arising from the letters of patronage”, “did not conduct a direct and specific examination reasons of encumbrance “. The same one is rather «delayed to examine two decisions of the Court of Appeal of Milan … that the defense of …. had attached and based on which the same …. it would have induced to settle the obligations assumed “with the said letters of patronage.

The reason can not be accepted.

In reality, the contested judgment has made specific reason for the rejection of the individual complaints made by the current appellant. Also using and resuming, in some respects, the findings made by the decisions of the Court of Appeal of Milan in relation to the same case (and carried out with regard to the claims made by the beneficiary banks of guarantees against … Insurance).

Thus, in relation to the complaint that the letters of patronage “do not constitute the right to give rise to the guarantee obligation”, the ruling found the various types of current letters in operations, also noting that, moreover, ” doubts … that from the letters of patronage, however, obligations are born “(see page 7).

The response that the Roman Court gave to the complaints then leavened, in the present judgment of legitimacy, in the first and fourth motives (see page 8 et seq.) Is decidedly broad and articulate.

9.- In conclusion, the appeal must be dismissed.

Source Supreme Court of Cassation