Guarantee and family ties with the managing shareholder: the guarantor does not qualify as a consumer

By judgment no. 306/2026 of 12 May 2026, the Court of Lucca declared inadmissible the late objection under Article 650 of the Italian Code of Civil Procedure brought by three guarantors, upholding the definitive nature of a payment order for a total amount in excess of EUR 2 million, issued over a decade earlier and enforced by a securitisation special purpose vehicle, assisted by Cassinelli Studio Legale.

The judgment offers a thorough examination of the limits of the consumer protection regime applicable to suretyship relationships, in light of the important jurisprudential framework set by the CJEU judgment of 17 May 2022 (joined cases C-693/19 and C-831/19, SPV/Banco di Desio) and by Cass. SS.UU. no. 9479/2023, which extended also to the enforcement stage the duty of the court to assess of its own motion the unfair character of clauses in contracts between trader and consumer.

The Court, however, ruled out – by way of a threefold ratio decidendi – the applicability of those principles to the case at hand. First, on grounds of efficacy ratione temporis, it held the Italian Consumer Code regime inapplicable to guarantees issued in February 2003 and in June 2005, prior to the entry into force of Italian Legislative Decree no. 206/2005.

Secondly, with respect to the guarantors who were also shareholders of the principal debtor (one holding 34% of the share capital and the other being sole director and sole shareholder), consumer status was excluded in application of the settled functional criterion expressed by Cass. SS.UU. no. 5868/2023.

Particularly significant is the third ground, relating to the guarantors holding no shareholding but bound by family ties to the shareholder-director. The Court endorsed the recent ruling of Cass. no. 23533/2024, pursuant to which the issuance of a guarantee in favour of a son’s business reveals an interest in the company’s activity stemming from the family bond, sufficient to exclude consumer status even in the absence of any holding in the share capital or of any office within the corporate structure.

As a further supporting ground, the Court noted that the guarantee in fact constituted an autonomous contract of guarantee by virtue of the payment clause “on first written request”, with consequent inapplicability ab origine of Article 1957 of the Italian Civil Code, in light of the recent ruling of Cass. no. 14945/2025 and of the framework set by Cass. SS.UU. no. 3947/2010.

The respondent party was assisted by Nicola Cassinelli and Giorgia Angilletta.