Judgment of the Court of Cassation No. 31105/2024: New Perspectives on First-Demand Guarantees

facciata della corte di cassazione
Share

Distinction between suretyship and independent guarantees, nullity of guarantees conforming to the ABI scheme, and key clarifications to protect guarantors.

The recent judgment of the Court of Cassation No. 31105/2024: Implications for Personal Guarantees Law

Judgment No. 31105/2024 of the Court of Cassation represents a milestone in the field of personal guarantees law, addressing two fundamental issues: the distinction between suretyship and an independent guarantee in the presence of “first-demand” clauses, and the nullity of guarantees conforming to the ABI (Italian Banking Association) scheme. This ruling provides valuable insights for professionals in the sector and economic operators who regularly deal with these contractual instruments.

1. Suretyship vs. Independent Guarantee

The Court of Cassation focused on the delicate distinction between suretyship and an independent guarantee, a topic that has often sparked heated debates among legal experts and sector operators. This distinction is not merely theoretical but has significant practical implications, directly impacting the protection of the parties involved and the enforceability of assumed obligations. In particular, the presence of “first-demand” or “without exception” clauses has been closely analyzed, as such clauses often create ambiguity in determining the nature of the contractual relationship

According to the Court, an independent guarantee differs from suretyship due to the absence of an accessory link to the main obligation. Practically speaking, this means that the guarantor is obligated to pay regardless of the exceptions that the primary debtor may raise. This feature makes the independent guarantee particularly attractive to creditors, as it provides them with a higher level of security than traditional suretyship. However, the mere presence of “first-demand” clauses, while bringing the relationship closer to the characteristics of an independent guarantee, is not sufficient in itself to transform a suretyship into an independent guarantee. The Court reiterated the importance of considering not only the content of the clauses but also the overall context and the intention of the parties.

To determine the legal nature of the instrument, the Court emphasized the need for a careful analysis of the contract’s overall structure, its purposes, and the agreed operational methods. This approach avoids erroneous or simplistic interpretations, promoting greater consistency in the application of the law. Furthermore, the judgment highlighted the importance of clear and unambiguous contract drafting to reduce the risk of disputes and ensure legal certainty. These principles serve as essential references for all those involved in the field of personal guarantees.

Additionally, in its judgment No. 31105/2024, he Court of Cassation clarified another crucial point: the clause requiring the guarantor to make a “payment upon simple written demand” does not, in itself, identify the contract as an independent guarantee and should not be interpreted as an implicit derogation from Article 1957 of the Italian Civil Code, even partially. This implies that, to avoid the expiration of the suretyship, merely sending a registered letter to the principal debtor is insufficient. This clarification represents a significant victory for guarantors, who see their contractual and procedural protections strengthened.

Contact us directly online for an immediate response, or call one of our nearest offices. Tel. +39 055 28.53.13 –Tel. +39 02 667.124.17
Email : info@italiafideiussioni.it

You can also contact us via WhatsApp: +39 339 71.50.157 send a message, and we will respond during office hours, within 5 minutes.

2. Nullity of Guarantees Conforming to the ABI Scheme

Another issue addressed in the judgment concerns the nullity of guarantees drafted according to the ABI scheme. Previous rulings had already determined that certain standardized clauses in the ABI scheme were anticompetitive and, therefore, void under Article 2 of Law No. 287/1990.

The Court of Cassation confirmed this approach, emphasizing that the uniform adoption of contractual clauses by banking institutions could harm free competition and consumers’ rights. Specifically, clauses that systematically worsen the guarantor’s position without ensuring contractual balance were declared void.

This ruling strengthens the protection of guarantors and requires banking institutions to exercise greater caution in drafting contractual terms, encouraging transparency and adherence to principles of contractual fairness.

3. Practical Implications for Professionals and Sector Operators

Judgment No. 31105/2024 offers important points of reflection and practical guidelines:

  • For legal professionals: It is crucial to carefully analyze contractual clauses to correctly distinguish between suretyship and an independent guarantee, considering the Court’s guidance on the legal characterization of these relationships. Lawyers and legal consultants, in particular, are called to develop increasingly specialized skills in this area to provide targeted advice and effective solutions to their clients. This also requires continuous updates on sector jurisprudence and related regulations to ensure the highest level of protection for their clients.
  • For banks and financial intermediaries: It is necessary to review standard contractual schemes to ensure compliance with antitrust regulations and adherence to principles of good faith and transparency. Banking institutions must adopt a proactive approach, carefully analyzing the clauses they use and evaluating their impact on clients to avoid sanctions and build customer trust. This also involves investing in more effective compliance systems and internal training programs to enhance staff knowledge of applicable regulations and associated risks.
  • For guarantors: The ruling provides an additional tool for protection against unfair and unbalanced clauses, offering the opportunity to challenge the validity of certain contractual provisions. Guarantors can, thanks to this judgment, strengthen their position in negotiations and potential disputes with banks or other creditors. However, it is essential for guarantors to be adequately informed about their rights and available options, including through specialized consultations that help them better understand the commitments they have undertaken and their potential consequences.

 

Summary

The judgment of the Court of Cassation No. 31105/2024 serves as a reference point for personal guarantees law, providing essential clarifications on two central issues and contributing to a more equitable and transparent regulatory framework. For sector operators, this ruling represents an opportunity to improve the management of guarantee contracts, reduce litigation risks, and promote fair and competitive contractual practices.


Share

Contact us

I have read the privacy policy and consent to the processing of my data
Iscrizione alla Newsletter