Omnibus sureties stipulated on forms conforming to the scheme prepared by the ABI (Italian Banking Association) in 2003 are at the center of significant banking litigation.
The issue stems from provision no. 55 of 2005 by the Bank of Italy, which ascertained the anti-competitive nature of certain clauses contained in that scheme, in violation of Art. 2 of Law no. 287/1990 (antitrust law).
The clauses declared null are specifically:
Art. 2 (Revival Clause): stipulates that the guarantor is required to reimburse the bank for sums collected if these must be returned following the annulment, ineffectiveness, or revocation of the payments themselves.
Art. 6 (Waiver of terms pursuant to Art. 1957 of the Civil Code): derogates from the Civil Code regulations, allowing the bank to act against the guarantor even if it has not proposed a claim against the principal debtor within six months of the obligation’s maturity.
Art. 8 (Survival Clause): establishes that the invalidity of the guaranteed obligation does not entail the invalidity of the surety.
The Consequences of Nullity With ruling no. 41994 of 2021, the United Sections of the Court of Cassation clarified that sureties reproducing these clauses are affected by partial nullity. This means that the illicit clauses are removed from the contract, while the guarantee remains valid for the rest.
The most relevant aspect for the debtor’s defense concerns the nullity of clause no. 6. Once this clause is removed, Art. 1957 of the Civil Code applies again. Consequently, if the bank has not taken judicial action against the principal debtor within six months of the debt’s maturity, the guarantor can claim the forfeiture of the guarantee and be released from payment.
It is essential to analyze the surety contract to verify its correspondence with the censured ABI scheme and to timely oppose any injunctions or foreclosures.
