News · Accounting · – 18 September 2026

Loans to businesses in crisis: under Cass. 25533/2026 nullity requires an offence and the bank’s participation

TOPIC
According to Cass. 25533/2026, nullity of a loan to an insolvent business for breach of mandatory rules requires identification of the criminal provision, proof of the offence and proof of the bank’s participation.

By order no. 25533 of 18 September 2026, the First Civil Division of the Corte di cassazione (Italian Supreme Court) set aside the decree by which the Tribunale (court of first instance), dismissing the challenge to the stato passivo (schedule of admitted claims), had upheld the exclusion of claims arising from two mortgage loans, and remitted the case to the Tribunale. The loans had been held void because they were designed to allow the bank to reduce unsecured exposures when the borrower’s position was already compromised; the Tribunale had also refused repayment of the sums under art. 2035 c.c. The Court reiterates that abusive lending, granted without reasonable prospects of a turnaround known or knowable ex ante to the professional lender, is not void for that reason alone: the bank’s duties of diligence, assessed also in the light of the sound and prudent management towards which art. 5 of Legislative Decree 385/1993 directs supervision, are rules of conduct. In lending to a business in crisis, the mandatory rule whose breach entails nullity under art. 1418, paragraph 1, c.c. may be a criminal provision, as with offences consisting in the contract itself or where the contract is the instrument of an offence of bancarotta semplice (simple bankruptcy offence), now provided for by art. 323 of Legislative Decree 14/2019. In that case the court must identify the provision breached, establish in concrete terms the objective and subjective elements of the offence and prove the bank’s participation as an external accessory.

The decision follows Cass. 18610/2021 on the criteria for abusive lending and Cass. 16706/2020 on the bar on restitution, but departs from the approach adopted a few months earlier by the same Division. Cass. 19288/2026, which the order cites on the criminal aspect, had described as preferable the line of case law that admits nullity even without an offence, where there is a predatory intent on the part of the lender attributable to an unlawful common motive contrary to public policy or morality. The order under review instead denies that conflict, in the economic sense, with public policy or morality can on its own ground nullity: a breach of morality may be relied on in addition to criminal unlawfulness, with the further effect of soluti retentio (non-recovery of sums paid), but cannot take its place. The conflict within the Division has not been resolved and must be taken into account in every pending case. The principle, stated in a fallimento (bankruptcy proceedings), can be carried over to liquidazione giudiziale (judicial liquidation), since the Court referred, alongside art. 217 l.f. (Bankruptcy Law), to the corresponding art. 323 of Legislative Decree 14/2019. In our view, the question of how the extraneus (a person outside the company) participates in the aggravation of the insolvency, an offence punishable also for gross negligence, remains open. The case returns to the Tribunale, so the outcome on the merits is not settled.

IN PRACTICE
A curatore (insolvency practitioner) intending to plead nullity of the bank loan would be well advised to set out in the draft stato passivo the criminal offence considered to have been committed, the conduct and the elements from which the bank’s knowing participation can be inferred, documenting them with credit files, Centrale dei rischi (central credit register) data and the use of the sums disbursed. The curatore should also plead separately, where the conditions are met, the predatory intent common to the parties. In proceedings governed by the Business Crisis and Insolvency Code, banks and assignees bring the challenge by petition within the peremptory thirty-day time limit from the notice under art. 205 of Legislative Decree 14/2019 (art. 207, paragraph 1). In the petition they must state, on pain of forfeiture, as required by art. 207, paragraph 2, point (d), the objections that the court cannot raise of its own motion, the means of proof and the documents, and use it to contest the failure to identify the criminal provision and their own participation. Those advising a business seeking new finance during a crisis should keep a plan and documentation that make the turnaround prospects verifiable ex ante, the dividing line between lawful and abusive lending.

Summary note by the CommercialistiAvvocati network, based on specialised legal and practice sources. The text does not reproduce original contributions and does not constitute professional advice.

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