Standard guarantees agreed between bank and client \u2013 \u200b\u200bClauses regarding revival, supervening obligations, and derogation from Art. 1957 of the Civil Code, reproducing the ABI (Italian Banking Association) model \u2013 Clauses issued outside the 2002\u20132005 period \u2013 Determination of nullity arising from agreements restricting competition \u2013 Judge\u2019s duty of assessment \u2013 \u200b\u200bExistence thereof \u2013 Relevance of the administrative finding contained in Bank of Italy Order No. 55 of 2005 \u2013 Conditions.<\/p>\n
Guarantee \u2013 Clause exempting the parties from the time limits set forth in Art. 1957 of the Civil Code \u2013 Nullity due to being the subject of agreements or concerted practices unduly restricting competition in the relevant market \u2013 Co-existing \u201cpayment on first demand\u201d clause \u2013 Forfeiture of rights \u2013 Out-of-court demand sent to the guarantor within the time limits of Art. 1957 of the Civil Code \u2013 Relevance \u2013 Conditions.<\/p>\n
Summary of the outcome<\/p>\n
The Joint Civil Sections were called upon to resolve the following questions of law:<\/p>\n
\u00ab1. Whether a guarantee containing the clauses regarding revival, survival, and derogation from Article 1957 of the Civil Code\u2014clauses censured by the Bank of Italy in sanctioning decision no. 55 of May 2, 2005\u2014may be considered functionally linked to the anticompetitive agreement sanctioned by the supervisory authority, and thus deemed void, even if issued outside the 2002\u20132005 period covered by the Bank of Italy\u2019s investigation; and, if so, whether such nullity can be established simply by pointing out that the specific guarantee reproduces the revival, survival, or Article 1957 derogation clauses found in the standard form drafted by the Italian Banking Association (ABI) and censured by the Bank of Italy in decision no. 55 of May 2, 2005, or whether, conversely, the functional link between the specific guarantee and the anticompetitive agreement sanctioned by the supervisory authority must be proven in some other way.<\/p>\n
2. Whether a guarantee containing the clauses regarding revival, survival, and derogation from Article 1957 of the Civil Code\u2014clauses censured by the Bank of Italy in sanctioning decision no. …No. 55 of May 2, 2005, can be said to be linked by a functional connection to the anticompetitive agreement sanctioned by the supervisory authority, and thus deemed void, even if issued for a specific transaction and not falling within the category of “omnibus” guarantees; and, in the affirmative, whether such nullity can be considered proven simply by highlighting the reproduction\u2014within the individual guarantee\u2014of the clauses regarding revival, survival, and derogation from Article 1957 of the Civil Code (clauses included in the standard form drafted by the ABI and censured by the Bank of Italy in sanctioning decision No. 55 of May 2, 2005), or whether, conversely, the functional connection between the individual guarantee and the anticompetitive agreement sanctioned by the supervisory authority must be proven in some other way.<\/p>\n
3. Whether, within the scope of a guarantee agreement incorporating clauses regarding reviviscence, survival, and derogation from Article 1957 of the Civil Code\u2014clauses censured by the Bank of Italy in sanctioning order no. 55 of May 2, 2005\u2014and once the nullity of such contractual provisions and the applicability (or revival) of the Civil Code\u2019s default rules have been established, a stipulation providing for payment upon simple written request (likewise contained in the guarantee text) is sufficient to grant the creditor the right to avoid the forfeiture of rights under Article 1957 of the Civil Code by means of a mere out-of-court demand, without the need to initiate judicial proceedings.<\/p>\n
With regard to the first two questions, the Joint Chambers, in stating the principle of law pursuant to Art. 363-bis of the Code of Civil Procedure, stated that:<\/p>\n
\u201c\u00abIn the case of a specific suretyship incorporating clauses regarding reviviscence, survival, and derogation from Article 1957 of the Civil Code\u2014established either prior to or subsequent to the timeframe covered by Bank of Italy Order no. 55 of 2005\u2014the trial judge must determine, within the scope of their own review, whether the contractual model employed corresponds to an agreement or concerted practice that restricts competition\u2014thereby rendering the \u2018downstream\u2019 guarantee void pursuant to the principles set forth by the Joint Chambers in Judgment no. 41994 of 2021\u2014while utilizing the aforementioned administrative finding as an element of proof (albeit one insufficient on its own), following an assessment of its content and scope regarding timeframes and subject matter extending beyond those strictly covered by the administrative finding itself\u00bb\u201d.<\/p>\n
Regarding the third question, the Supreme Court held that:<\/p>\n
\u201c\u00abWhere a guarantee contains a \u2018payment on first demand\u2019 clause, the creditor avoids the forfeiture of rights\u2014even by means of an out-of-court demand sent to the guarantor within the time limits set forth in Article 1957 of the Civil Code\u2014provided that such a demand is made within those limits; this applies even if a concurrent clause exempting the parties from compliance with said time limits has been declared void because it was the subject of agreements or concerted practices that unduly restricted competition in the relevant market\u00bb\u201d.<\/p>\n
Source Supreme Court of Cassation<\/p>\n","protected":false},"excerpt":{"rendered":"
Standard guarantees agreed between bank and client \u2013 \u200b\u200bClauses regarding revival, supervening obligations, and derogation from Art. 1957 of the Civil Code, reproducing the ABI (Italian Banking Association) model \u2013 Clauses issued outside the 2002\u20132005 period \u2013 Determination of nullity arising from agreements restricting competition \u2013 Judge\u2019s duty of assessment \u2013 \u200b\u200bExistence thereof \u2013 Relevance of the administrative finding contained in Bank of Italy Order No. 55 of 2005 \u2013 Conditions. Guarantee \u2013 Clause exempting the parties from the time limits set forth in Art. 1957 of the Civil Code \u2013 Nullity due to being the subject of agreements or…<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[223],"tags":[],"yoast_head":"\n