Disputes concerning financial intermediation have reached, despite the level of sophisticated complexity that characterizes them, a well-established position in jurisprudence. Two recent judgements of the Supreme Court suggest dwelling on two central aspects that, as will be seen, still deserve a deeper focus:
1. the first, which has a formal character, consists in the obligation of written form;
2. the second, which is of a substantive nature, consists of information obligations.
1. As is well known, the laws that have succeeded one another from time to time have always provided for the necessity of the written form for the so-called framework contract as well as, upon the occurrence of certain investment risk parameters, for the individual purchase orders.
And in fact, in the case recently decided by the Court of Cassation (29.09.2022 no. 28377), the depositors requested the nullity of the contract (as well as of the subsequent purchase orders) based on the alleged lack of the form in writing. The bank duly produced then in court a hard copy of the framework contract and the Tribunal dismissed the case.
Following the rejection ruling at first instance, however, the depositors objected – for the first time on appeal – the nullity of the contract due to the intermediary bank's failure to sign it and the Court of Appeal held this objection inadmissible because it was new, pursuant to Art. 345 (1) of the Code of Civil Procedure.
The Supreme Court, on the other hand, stated that the appeal judges should not only have held the objection as admissible pursuant to Art. 345 (2) of the Code of Civil Procedure – since the objection of nullity, even for so-called “protective” nullities, can also be raised ex officio – but should also have invited the parties to discuss this point pursuant to Article 101 (2) of the Code of Civil Procedure (a provision which, as is well known, regulates precisely the case in which the judge considers to base his decision on an objection raised ex officio). And the Supreme Court set aside the judgment referring it to another chamber of the same Court of Appeal.
The decision, although correct from a procedural law point of view, is however puzzling: constant case law now holds that the bank's lack of signature does not trigger the nullity of the contract (so-called ‘mono-signature contracts', see Cass. S.U. 16.01.2018 no. 898 and Cass. 2.04.2021 no. 9196); now this principle will have to be assessed by the Court of Appeal on remand, after about six years in the Court of Cassation (of which almost two years between the date of the council chamber and the date of publication of the judgment).
2. With reference to the disclosure obligations, instead, Cass. 11.10.2022 no. 29616 stands out for a rigorous approach while, at the same time being attentive to the substance and effectiveness of the protection of the depositors, where it states that “the plurality of obligations (of diligence, fairness and transparency, of information, of highlighting the characteristics of the transaction to be performed) provided for by the Legislative Decree No. 58 of 1998, art. 21, paragraph 1, lett. a) and b), art. 28, paragraph 2 and art. 29 of CONSOB Reg. no. 11522 of 1998 (applicable ‘ratione temporis') and pertaining to persons authorised to carry out financial transactions, converge towards a unitary end, consisting in indicating to the depositor, in relation to his ascertained propensity to risk, the unsuitability of the investment transactions he is about to undertake“: this is the so-called “suitability rule“, which is linked to the further obligations laid down by the so-called “know you customer rule” and “know your product rule“.
It is up to the financial intermediary, in the event of objections raised by the depositor, to prove that it has fulfilled its information obligations (the fact that the depositor has given his purchase order in writing only gives rise to the presumption that he has been informed but does not exempt the intermediary from the burden proof). In this respect, the judgment at stake gives weight not only to the written documentation delivered by the bank, but also to the information provided verbally by the bank officer.
The Supreme Court's conclusions of this second decision appear to be supportable. On the one hand, it delineates a complete and effective framework for the protection of the depositor, in which the intermediary must not only inform, but also be informed and arrive at an assessment of adequacy. On the other hand, precisely with a view to effectiveness, it stresses not only the formal element – of written documentation – but also the substantial one: the oral and, it may be said, personal element of information that, through the bank officer, should be the central focus of the relationship between depositor and intermediary.
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