{"id":12337,"date":"2026-09-22T15:50:02","date_gmt":"2026-09-22T13:50:02","guid":{"rendered":"https:\/\/studiocassinelli.it\/en\/?p=12337"},"modified":"2026-09-30T15:51:26","modified_gmt":"2026-09-30T13:51:26","slug":"specific-guarantee-and-derogation-from-article-1957-of-the-italian-civil-code-the-first-rulings-of-the-courts-after-the-joint-sections","status":"publish","type":"post","link":"https:\/\/studiocassinelli.it\/en\/specific-guarantee-and-derogation-from-article-1957-of-the-italian-civil-code-the-first-rulings-of-the-courts-after-the-joint-sections\/","title":{"rendered":"Specific guarantee and derogation from Article 1957 of the Italian Civil Code: the first rulings of the Courts after the Joint Sections"},"content":{"rendered":"\n

By judgment no. 597\/2026 of 22 September 2026, the Court of Macerata fully dismissed the pleadings advanced by a guarantor against a securitisation special purpose vehicle, assisted by Cassinelli Studio Legale<\/strong>.<\/p>\n\n\n\n

The statement of claim was based on twelve separate grounds, all rejected by the Court in a judgment of significant systematic scope.<\/p>\n\n\n\n

The doctrinal core of the judgment lies in the application of the principle of law laid down by Cass. SS.UU. no. 24825\/2026 of 28 August 2026<\/strong>, which has definitively clarified the distinct function of the clause derogating from Article 1957 of the Italian Civil Code and of the payment clause \u201con first request\u201d<\/strong>. The Panel endorsed the principle pursuant to which \u2013 even were the derogation clause to be held invalid by reason of its antitrust origin \u2013 that nullity does not extend to the distinct \u201con first request\u201d clause, the two provisions serving autonomous functions: the former affects the time limit, the latter the form of the demand. It follows that any revival of the six-month time limit under Article 1957 of the Italian Civil Code remains in any event compatible with the creditor\u2019s continuing right to prevent the lapse through a simple out-of-court written demand.<\/p>\n\n\n\n

In the case at hand, however, the revival was radically excluded. The guarantees, signed in 2015 and 2016 \u2013 and therefore in a period subsequent to the diffusion of the ABI standard form censured by Bank of Italy measure no. 55\/2005 \u2013 do not benefit from the enhanced evidential effect of the administrative finding, the burden falling on the opposing party to demonstrate the persistence of the anticompetitive agreement at the time of execution, a burden not discharged in the present case. The derogation clause, doubly signed pursuant to Article 1341 of the Italian Civil Code, is therefore fully valid and effective.<\/p>\n\n\n\n

With equally refined reasoning, the Court excluded the guarantor\u2019s consumer status<\/strong>, he being the sole director of the principal debtor company, in application of the settled functional criterion. On the separate front of the determinacy of interest rates, the Panel held fully compliant with the standard of Article 1346 of the Italian Civil Code the clause of the loan agreement which indexes the rate to the Euribor by objectively identifying the parameter, the source (page EURIBOR01 of the Reuters circuit), the moment of reference, the day-count convention and the interpolation criterion, in line with the teaching of Cass. no. 20801\/2024.<\/p>\n\n\n\n

The defence was conducted by Nicola Cassinelli<\/strong> and Francesca Minelli<\/strong>.<\/p>\n","protected":false},"excerpt":{"rendered":"

By judgment no. 597\/2026 of 22 September 2026, the Court of Macerata fully dismissed the pleadings advanced by a guarantor against a securitisation special purpose vehicle, assisted by Cassinelli Studio Legale. The statement of claim was based on twelve separate grounds, all rejected by the Court in a judgment of significant systematic scope. The doctrinal core of the judgment lies in the application of the… <\/p>\n

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