Mortgage in Bankruptcy and Proof of Certain Date: The Cassation Court Order No. 16631 of 2025

In the complex and delicate scenario of insolvency proceedings, the verification of the bankruptcy estate represents a crucial moment for creditors seeking to assert their rights. Often, the validity of a claim depends not only on its existence but also on its enforceability against the body of creditors, an aspect that, in the presence of private writings, clashes with the principle of the "certain date." On this fundamentally important issue, the Court of Cassation has intervened with Order No. 16631 of June 21, 2025, offering a clarifying and, in some respects, innovative interpretation, destined to significantly influence the approach of creditors and bankruptcy trustees.

Mortgage Claims in Bankruptcy: The Challenge of Proof

When a company or an individual goes bankrupt, all their assets are acquired by the bankruptcy proceedings to satisfy creditors. Each creditor must submit their claim for admission to the estate, proving the existence and amount of their debt. In the specific case of a claim arising from a mortgage agreement, the burden of proof is particularly stringent. The creditor, in fact, must not only prove that they granted the loan and agreed on its terms (due dates, interest rates) but also that such an agreement had a "certain date" prior to the declaration of bankruptcy. This requirement, established by Article 2704 of the Civil Code, is essential to ensure that the contract was not simulated or created specifically to defraud creditors in proximity to insolvency.

The Certain Date and Article 2704 of the Civil Code: An Obstacle to Overcome?

Article 2704 of the Civil Code establishes that the date of an unauthenticated private writing cannot be considered certain and computable with respect to third parties (and therefore to the bankruptcy) except from the day of its registration, or from the day of the death or subsequent physical impossibility of one of the signatories, or from the day on which the content of the writing is reproduced in a public deed, or, finally, from the day on which another fact occurs that establishes with equal certainty the anteriority of the document's formation. Traditionally, the lack of a certain date for a mortgage agreement has often resulted in the claim being unenforceable against the bankruptcy estate, leaving the creditor unprotected.

It is precisely on this point that Order No. 16631 of 2025, in the case that saw C. (A. D. S.) versus F. (R. T.), intervenes with a more flexible perspective, while respecting the regulations. The Supreme Court, presided over by Dr. F. Terrusi and with Dr. G. Dongiacomo as rapporteur, quashed with referral the decision of the Court of Santa Maria Capua Vetere of 17/12/2018, highlighting how proof of the certain date can also be achieved through means other than the mere production of the document with intrinsic certain date. The maxim that summarizes this important principle states:

The creditor who acts in the verification of the bankruptcy estate based on a mortgage agreement has the burden of proving the existence of the title, with the discipline of the agreed temporal deadlines and interest rates, as well as its certain date prior to the bankruptcy, pursuant to Article 2704 of the Civil Code, which, not concerning the contractual title but the date of the writing produced for this purpose, allows its demonstration through facts suitable for this purpose, even disregarding the document, availing oneself of all means of proof permitted by the legal system, with the limitations arising from the nature and object of the transaction itself; in particular, the lack of a certain date for the contract produced as proof of the claim consequently entails the unenforceability against the bankruptcy estate solely of the clauses reported on the relevant documentation, but does not exclude that the payment of sums by the creditor may be proven in court, and therefore, both the existence of a corresponding claim for repayment of the principal, and the contractual nature of the claim itself.

This ruling is of extreme importance. The Cassation Court clarifies that Article 2704 of the Civil Code refers to the date of the produced writing, not to the contractual title itself. This means that, even if the mortgage contract document does not have a certain date, the creditor can prove the anteriority of their claim with respect to the bankruptcy through other suitable facts and with all means of proof provided by the legal system. The consequence is that unenforceability against the bankruptcy estate is limited to the clauses of the contract lacking a certain date, but it does not prevent proving the actual payment of the sums and, consequently, the existence of the claim for repayment of the principal and its contractual nature.

Admissible Means of Proof and Practical Implications

The Order therefore opens up greater evidentiary flexibility. The creditor may avail themselves of a plurality of elements to prove the certain date of the mortgage, including:

• Bank movements or wire transfers attesting to the disbursement of funds;
• Correspondence (including electronic) exchanged between the parties referring to the contract and its execution;
• Accounting records or company balance sheets highlighting the loan;
• Testimonies (within the limits provided by the Code of Civil Procedure);
• Any other fact or document that unequivocally demonstrates that the contract was already in existence and operational before the declaration of bankruptcy.

It is crucial to emphasize that this openness does not equate to an elimination of the burden of the certain date, but rather to a reinterpretation of its scope. The objective remains to protect the bankruptcy estate from fictitious or ad hoc created claims, while recognizing that the economic substance of the transaction and the actual disbursement of capital should not be prejudiced by a mere documentary formality, if proof can be achieved through other means.

Conclusions: Balance Between Protection and Certainty

Order No. 16631 of 2025 by the Court of Cassation represents an important step forward in the interpretation of Article 2704 of the Civil Code in bankruptcy matters. It balances the need for legal certainty and the protection of the par condicio creditorum with the principle of protecting actual claims. For creditors, this means that, even in the absence of a mortgage contract with a "formal" certain date, all is not lost. However, it will be essential to be able to provide a solid and coherent evidentiary framework, unequivocally demonstrating the anteriority of the claim with respect to the bankruptcy. For trustees and legal professionals, the ruling requires a more in-depth and less automatic evaluation of claims for admission to the estate based on mortgages, prompting consideration of the totality of the circumstances and available means of proof. It is a reminder not to stop at the form, but to investigate the substance of economic transactions.