Italy Update: Omnibus guarantees: partial nullity of the contract based on agreements contrary to antitrust regulations

“The clauses of the surety contract that comply with the scheme prepared by the ABI and declared contrary to antitrust legislation by the Bank of Italy’s measure are null and void”.

The clause object of the dispute examined by the Emilian Court, entailed the renunciation of the application of art. 1957 c.c., which provides for the release of the guarantor in the event that the creditor does not act against the debtor within 6 months of the maturity of the main obligation.

This agreement was declared contrary to antitrust legislation (in particular, Article 2, paragraph 2, letter a), Law no. 287/1990) by the provision of the Bank of Italy no. 55 of 02/05/2005.

The United Sections of the Court of Cassation also intervened on this point, which, with judgment no. 41994 of 30.12.2021, affirmed the principle according to which omnibus surety contracts based on the scheme prepared by the ABI and declared contrary to the antitrust discipline, “are partially null and void only in relation to the clauses that reproduce those of the unilateral scheme constituting the prohibited agreement, unless it is possible to deduce from the contract, or is otherwise proven, a different will of the parties.’

By Quorum, Italy, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact italy@transatlanticlaw.com

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