By judgment no. 1654/2026 of 26 May 2026, the Court of Appeal of Milan, first civil division, upheld the dismissal of the appeal brought by six guarantors against the judgment of the Court of Milan which had rejected their claims for nullity of the guarantee and for release therefrom, in proceedings in which Cassinelli Studio Legale assisted the assignee of the claim originally held by the banking institution.
The judgment systematically addresses the principal grounds of challenge typically raised by guarantors when called upon to pay: the alleged total nullity of the guarantee on grounds of its antitrust origin, the partial nullity under Cass. SS.UU. no. 41994/2021, the breach of Article 1956 of the Italian Civil Code and, finally, the alleged breach of the disclosure duties under Article 119 TUB and of the general principles of good faith and fair dealing.
As to the first ground, the Court recalled the principle – recently reaffirmed by Cass. no. 30383/2024 and no. 18794/2023 – pursuant to which it is incumbent upon the party invoking the total avoidance of the contract to plead and prove that the parties would not have entered into it absent the contested clauses, the court being precluded from extending the partial nullity to the whole agreement of its own motion. In the absence of such pleading, the request for a declaration of total nullity was rejected irrespective of any abstract correspondence of the clauses to the model sanctioned by the Bank of Italy.
On the most refined point of the judgment, the Court applied the principle of the more readily decisive ground, observing that, even leaving aside the qualification of the relationship as either an autonomous guarantee or a typical accessory guarantee, Article 1956 of the Italian Civil Code could not in any event operate in the case, it being undisputed that the bank had not extended any new credit to the guaranteed company after the conclusion of the guarantee: the conditions for the application of the provision are therefore lacking.
Particularly significant is the application of the fundamental principle laid down by Cass. SS.UU. no. 26724/2007 (the so-called Rordorf judgments), pursuant to which a distinction must be drawn between the breach of rules of validity – the only breach capable of giving rise to the nullity of the contract – and the breach of rules of conduct, including the duties of good faith and protection, which may at most found a claim in damages. It follows that any failure by the bank to disclose the upstream enforcement of the banking guarantee could not in any event have grounded the relief sought, but only an action for damages, which was not, however, reiterated on appeal and was therefore deemed waived.
The full dismissal of the appeal was accompanied by the order requiring the appellants to reimburse the legal costs of both instances to each of the respondent parties, together with the declaration as to the existence of the conditions for the payment of the further sum corresponding to the court fee.
The respondent party on appeal was assisted by Nicola Cassinelli and Matteo Boccardo.