By judgment no. 389\/2026 of 5 May 2026, the Court of Pavia dismissed the objection to a payment order brought by two guarantors for the amount of EUR 274,376.98, upholding the order issued in favour of a securitisation special purpose vehicle, assisted by Cassinelli Studio Legale, and declaring the order enforceable.<\/p>\n\n\n\n
The judgment is notable for its valuable reasoning as to the qualification of the relationship and as to the operation of the time limit under Article 1957 of the Italian Civil Code where the principal debtor is subsequently placed in bankruptcy proceedings.<\/p>\n\n\n\n
On the first point, the Court applied the recent principle of law laid down in Cass. no. 31105\/2024, pursuant to which the presence of a payment clause \u201con first request\u201d is not in itself decisive for the qualification of the relationship as a suretyship or as an autonomous contract of guarantee, the court being required instead to reconstruct, by means of the ordinary interpretative tools, the parties\u2019 actual common intention and the purpose concretely pursued. On that premise, the Court identified within the contractual arrangement a plurality of unequivocal indicators of autonomy \u2013 including, in addition to the clause for immediate payment on first request \u201ceven in the event of objection by the debtor\u201d, the exclusion of objections regarding the time of termination and the express waiver of the time limits under Article 1957 of the Italian Civil Code \u2013 held incompatible with the abstract cause of a suretyship relationship.<\/p>\n\n\n\n
Particularly refined is the second ground, developed by way of further confirmation. The Court observed that the declaration of bankruptcy of the debtor company, occurring in March 2015 within the six-month period from the maturity of the principal obligation, precluded any individual judicial initiative by the creditor, the only available avenue being the timely filing of a proof of debt, duly carried out. It follows that, even on the assumption of the nullity of the derogation clause, no inertia capable of triggering the lapse could be attributed to the creditor.<\/p>\n\n\n\n
As to the alleged nullity of the derogation from Article 1957 of the Italian Civil Code by reason of its antitrust origin, the Court endorsed the settled orientation of the Specialist Business Division of the Court of Milan (judgments no. 8031\/2022 and no. 5751\/2020), pursuant to which, the matter giving rise to a so-called stand-alone action (and not a follow-on action), the burden falls on the opposing party to prove the persistence of the anticompetitive agreement at the time of execution of the contract, going beyond the temporal scope of Bank of Italy measure no. 55\/2005; a burden not discharged in the present case.The respondent party was assisted by Nicola Cassinelli<\/strong> and Giorgia Angilletta<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" By judgment no. 389\/2026 of 5 May 2026, the Court of Pavia dismissed the objection to a payment order brought by two guarantors for the amount of EUR 274,376.98, upholding the order issued in favour of a securitisation special purpose vehicle, assisted by Cassinelli Studio Legale, and declaring the order enforceable. The judgment is notable for its valuable reasoning as to the qualification of the… <\/p>\n