The Supreme Court of Cassation (“The Supreme Court”), in judgment no. 27243, dated 21 October 2024, ruled on the partial nullity of a specific surety guarantee, applying the principles set out by the United Sections of the Supreme Court in judgment no. 41994 of 30 December 2021 on the nullity of “omnibus” surety guarantees.
In summary, it is recalled that the aforementioned United Sections held that surety contracts entered into downstream of agreements declared partially null and void by the Guarantor Authority are themselves also partially null, but only in relation to those clauses that reproduce the provisions contained in the unilateral scheme constituting the prohibited agreement. On this point, it should be noted that the Bank of Italy, by Order no. 55 of 2 May 2005, had already sanctioned as anti-competitive, and therefore void, Articles 2, 6 and 8 of the contractual scheme drafted by the Italian Banking Association (ABI) for sureties guaranteeing banking operations (“omnibus sureties”).
That being said, decision no. 27243 of 21 October 2024 is important because it holds that the aforementioned principles expressed by the United Sections apply not only to omnibus sureties, but also to specific sureties.
It should be emphasised that:
- Omnibus sureties are guarantees extending to all obligations of the guaranteed debtor arising from future transactions, whose validity is conditional, pursuant to Article 1938 of the Civil Code, on specifying the maximum guaranteed amount.
- Specific sureties, on the other hand, are guarantee debts arising from particular contractual relationships, which the parties have expressly referred to in the surety agreement.
In the case decided by the Supreme Court, the appellants raised the objection of partial nullity of the specific surety guarantee at issue, relying on the aforementioned Bank of Italy order and the principles expressed by the United Sections. The appellants argued that nullity could not be limited to the omnibus surety alone, as it resulted from the violation of a general principle protecting the freedom of competition.
In the case brought to the Supreme Court's attention, therefore, the partial nullity of the surety clause derogating from Article 1957 of the Civil Code was upheld. In this regard, it should be noted that the Italian Civil Code provision sets a 6-month term within which the surety remains liable jointly with the principal debtor, despite the expiry of the principal obligation, provided, however, that the creditor has initiated enforcement proceedings within that period and has pursued them diligently. Since the clause in the surety agreement derogating from Article 1957 of the Civil Code was regarded as a mere transposition of Article 6 of the ABI scheme, the Supreme Court deduced its nullity under Article 1419 of the Civil Code, thereby reviving the time limit established by Article 1957. Consequently, in this case, the creditor's claim was barred, as enforcement was initiated only after the expiry of that period.
Conclusion
Thanks to this ruling by the Supreme Court, new avenues of defense are now open to guarantors who have signed a surety agreement with a bank that includes one or more clauses which, to their detriment, deviate from the provisions of the Civil Code and mirror contractual terms that have been sanctioned in the ABI surety template.
Nullità parziale della fideiussione specifica
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