Postponement of Shareholder Loans in Controlled Liquidation: Cassation Order No. 17508/2025 and Overdue Debts
Order No. 17508 of June 29, 2025, issued by the Court of Cassation, provides essential clarification on the application of Article 2467 of the Italian Civil Code (c.c.) in controlled liquidation proceedings. The ruling, in the case between R. (S. G.) and B. (C. R.), addresses whether shareholder loans, even if postponed, should be included in the calculation of "overdue and unpaid debts" for access to this procedure under the Code of Business Crisis and Insolvency (Legislative Decree 14/2019, c.c.i.i.).
Context: Article 2467 c.c. and Controlled Liquidation
Article 2467 of the Civil Code provides for the postponement of shareholder loans: if a shareholder finances their company during financial distress, their claim is satisfied only after all other company creditors. This rule protects external creditors. The Code of Business Crisis (c.c.i.i.) introduced controlled liquidation (Articles 268 et seq.) for over-indebted debtors. Admission to this procedure depends on the amount of "overdue and unpaid debts" (Article 268, paragraph 2, c.c.i.i.). The question was whether shareholder claims, despite being postponed, fell within this calculation.
The Cassation's Clarification: Overdue Debt, Even If Unenforceable
The Supreme Court, with Order No. 17508 of June 29, 2025, provided an unequivocal answer. The headnote of the judgment, which we report in full, states:
In the context of controlled liquidation, the postponement of a shareholder's claim pursuant to Article 2467 of the Civil Code, being a condition of legal and temporary unenforceability of the right to repayment of the "loan," does not exclude the company's debt which, when not satisfied within the foreseen term, is, for all legal purposes, an "overdue" debt, albeit still unenforceable until the impediment provided by said article persists; consequently, it must be taken into account for the determination of the amount of overdue and unpaid debts indicated by Article 268, paragraph 2, of the c.c.i.i. for the debtor's submission to the controlled liquidation procedure.
This ruling clarifies that postponement renders the shareholder's claim temporarily unenforceable but does not alter its nature as a debt. If not paid by the due date, it is an "overdue debt." Unenforceability suspends the recovery action, not the obligation itself. The direct implications are:
- Postponement constitutes legal and temporary unenforceability, not the non-existence of the debt.
- A shareholder's loan, if not repaid within the terms, is an "overdue" debt.
- Shareholder claims subject to postponement must be included in the calculation of "overdue and unpaid debts" for access to controlled liquidation (pursuant to Article 268, paragraph 2, c.c.i.i.).
- This ensures a realistic assessment of the crisis situation and protects other creditors.
Conclusions
The Cassation's decision is crucial for the management of business crises. It underscores the importance of careful management of shareholder financing: even if postponed, their claims contribute to the indebtedness threshold for accessing insolvency proceedings. This promotes greater transparency and a rigorous approach in assessing the state of crisis. Order No. 17508/2025 strengthens legal certainty and creditor protection. Shareholders, directors, and professionals are called upon to carefully consider this ruling.
