Guarantees: nullity of some "standard" clauses used by Banks

The Court of Cassation with united sections with the recent judgment no. 41994 of 30.12.2021 has definitively resolved an issue long debated in doctrine and jurisprudence regarding the guarantees drawn up on the ABI scheme (the Italian Banking Association).

In particular, some clauses had already been evaluated as an anti-competitive understanding by the Bank of Italy in 2005 (Provision of the Bank of Italy n. 55/2005: "Articles 2, 6 and 8 of the contractual scheme prepared by the ABI for the guarantee of banking transactions (omnibus guarantee) contain provisions that, to the extent that they are applied uniformly, are in contradiction with Article 2, paragraph 2, letter a), of Law no. 287/90”).

Several years later, comes the decision of the Supreme Court declaring the partial nullity of the guarantees containing the aforementioned clauses, taking into account European and national rules.

Therefore, from the nullity of these clauses derive some effects:

-The guarantees, purified by the clauses affected by nullity, remain valid and effective;

-The ex officio detectability by the judge of the nullity of the aforementioned clauses, the imprescriptibility of the action of nullity and, recurring its assumptions, the proposability of the action of repetition of undue debt pursuant to art. 2033 c.c. and of the action for damages.

Milano, January 12th 2022.

Avv. Giovanni Babino