Banking Contracts and Written Form: Commentary on Order No. 18230 of 2024

Recently, the Court of Cassation issued Order No. 18230 of July 3, 2024, providing important clarification regarding banking contracts and the written form requirement. This ruling is part of a complex legal context, where the form ad substantiam plays a crucial role in ensuring the validity of contracts, albeit with some significant specifications.

Legal Context

The judgment under review refers to the provisions of Article 117 of Legislative Decree No. 385 of 1983 and Article 23 of Legislative Decree No. 58 of 1998, which require written form for the validity of certain banking contracts. However, the Court has clarified that this requirement pertains exclusively to the external appearance of the contract and the expressive mode of the agreement, without extending to the delivery of the contractual document itself.

Banking Contracts - Form ad substantiam - Extension to Delivery of Contractual Document - Exclusion - Reasons. In the context of banking contracts, the written form requirement ad substantiam, provided for by Article 117 of Legislative Decree No. 385 of 1983 and Article 23 of Legislative Decree No. 58 of 1998, relates to the external appearance of the contract and the expressive mode of the agreement, and does not extend to the delivery of the contractual document concluded in this form, the omission of which does not result in any contractual nullity.

Implications of the Ruling

This decision has significant implications for parties involved in banking contracts. In particular, the ruling clarifies that the lack of delivery of the contractual document, while a recommended practice, does not affect the validity of the contract itself. This means that a contract can be considered valid even if the document has not been physically delivered to the contracting party.

• Recognition of contract validity even without delivery.
• Clarity on the formal nature of the written form requirement.
• Possibility of a more flexible interpretation of banking contracts.

Conclusions

In conclusion, Order No. 18230 of 2024 represents a significant step in clarifying the dynamics of banking contracts, emphasizing the importance of written form as a validity requirement without extending this necessity to the delivery of the document. This approach, while protecting the rights of the parties, also offers greater flexibility and simplification in contractual relationships, which can often be complex and burdensome. Institutions and legal professionals in the sector should consider these guidelines for the correct management of banking contracts.