News · Civil law · – 28 August 2026

Specific ABI guarantees or those outside 2002-2005: nullity must be proved on the facts

TOPIC
The Joint Divisions confine the special evidential value (prova privilegiata) of the finding on the ABI agreement to omnibus guarantees of 2002-2005 and preserve the effectiveness of an out-of-court demand in guarantees with a clause for payment on first demand.

By judgment no. 24825 filed on 28 August 2026, the Joint Civil Divisions (Sezioni Unite) of the Corte di cassazione (Italian Court of Cassation) narrow the effect of Bank of Italy decision no. 55 of 2 May 2005 on guarantees that reproduce the revival clause, the survival clause and the clause derogating from art. 1957 of the Civil Code (c.c.) contained in the ABI (Italian Banking Association) standard form. The judgment was delivered on a referral of a point of law by a lower court (rinvio pregiudiziale) under art. 363-bis of the Code of Civil Procedure (c.p.c.). That finding concerned only omnibus guarantees (fideiussioni omnibus) and the period from 2002 to 2005, and only within that scope does it retain its special evidential value (prova privilegiata) as proof of the prohibited agreement, whose nullity derives from art. 2, paragraph 3, of Law no. 287/1990. For specific guarantees and for those given before or after that period, the decision is reduced to a piece of evidence which is not sufficient on its own. The court ruling on the merits must determine its weight: for the earlier period, whether it shows a uniform banking practice already in place when the guarantee was given; for the later period, whether the agreement continued to produce effects on the market. The burden remains on the guarantor, with no reversal based on proximity to the evidence, and the bank may always prove that the clauses were genuinely and freely negotiated on an individual basis.

The second principle concerns the clause providing for payment on first demand, which the same 2005 decision had found compatible with competition law. Even where the derogation from art. 1957 c.c. is declared void and the statutory time limit applies again, the creditor avoids forfeiture of its rights (decadenza) by a simple out-of-court demand addressed to the guarantor within that time limit. The first-demand clause in fact governs the manner in which the creditor acts and is not affected by the nullity of the derogation as to time limits, unless the court ruling on the merits finds that other clauses of the individual contract limit its scope. The Court thus resolves a conflict between ordinary divisions, departs from the view that being a “downstream” guarantee was sufficient in itself, and states that judgment no. 41994 of 2021 had not examined these issues. In our view the most delicate point is evidence for specific guarantees and for those given after 2005. The means indicated is an order for the production of documents under art. 210 c.p.c., which must also be assessed in light of the criteria in art. 3, paragraphs 1 and 2, of Legislative Decree no. 3/2017. That provision requires the party to indicate the facts reasonably available to it and to define the evidence sought, so the application for the order should be framed from the first defence pleading onwards.

IN PRACTICE
In pending proceedings, and in particular in opposition proceedings against a decreto ingiuntivo (Italian payment order), a guarantor who pleads the nullity of a specific guarantee, or of one given outside 2002-2005, must allege and prove on the facts that the three clauses were standardised at the time of signing, stating precisely the documents or categories of documents whose production is sought. Before building the defence on the forfeiture provided for by art. 1957 c.c., counsel should check whether the text contains the first-demand clause and whether the bank or the assignee sent the guarantor a written demand for payment within six months of the due date of the principal obligation, including where that due date results from the debtor’s loss of the benefit of the term, or within two months if the guarantee was limited to the same due date as the principal obligation. For banks and buyers of non-performing loans, it becomes decisive to keep proof of the dates on which that demand was sent and received.

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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