Null and Void Suretyships: A Widespread Problem

Many entrepreneurs, professionals, and private citizens find themselves signing suretyship agreements, often of the 'omnibus' type, as a condition for obtaining financing or a bank credit line for their business or for a family member. This act, perceived as a mere formality, can transform into a burdensome and seemingly unavoidable obligation. However, a significant portion of these guarantees are null and void due to their conformity with a contractual scheme prepared by ABI (Italian Banking Association) that violates competition law. Understanding this issue is the first step to defending your rights as a guarantor. As an attorney specializing in banking litigation in Milan, Avv. Marco Bianucci assists guarantors in establishing such nullities.

The Regulatory Context: Why Suretyships Are Null and Void

The issue originates from the Bank of Italy's measure no. 55 of May 2, 2005, which, as the Guarantor Authority for Competition in the banking sector, declared certain specific clauses contained in ABI's omnibus suretyship scheme illegitimate. These clauses, including the 'revival' and 'survival' clauses, were deemed detrimental to free competition. Case law, consolidated by several rulings of the United Sections of the Court of Cassation, has established that suretyship agreements entered into following this illicit agreement are partially null and void. The nullity affects the clauses that replicate the ABI scheme, making the guarantor's position much more protected than the bank wants to believe.

The Bianucci Law Firm's Approach

Dealing with a credit institution requires a precise legal strategy and a deep knowledge of banking law. The approach of Avv. Marco Bianucci, an attorney with extensive experience in null and void suretyships in Milan, is structured in clear, targeted phases for the guarantor's protection. The first step is a meticulous analysis of the suretyship agreement to check for the presence of the objectionable clauses. Subsequently, the best defense strategy is defined: whether it involves opposing a payment order issued by the bank or initiating a declaratory action to have the nullity declared, the goal is always to free the guarantor from illegitimate obligations and, where possible, to recover sums already unduly paid. Each case is handled with a personalized approach, carefully evaluating the specific circumstances to maximize the chances of success.

Frequently Asked Questions

How can I know if my suretyship is null and void?

For an initial assessment, you need to compare the text of your suretyship agreement with the ABI scheme censured by the Bank of Italy. The critical clauses to look for are typically those that stipulate that the guarantor must pay immediately to the bank, upon simple written request, and that the guarantor's obligations persist even if the principal obligation is invalidated. However, only a thorough legal analysis can confirm the nullity with certainty and the strategy to adopt.

What does it mean for the nullity to be 'partial'?

Prevailing case law holds that the nullity affects only the specific clauses that violate antitrust regulations, leaving the rest of the suretyship agreement valid. While this may seem limiting, the removal of these clauses significantly weakens the bank's position, limiting its ability to demand payment unconditionally and opening significant avenues for the guarantor's defense.

I have already received a payment order, can I still do something?

Absolutely yes. Receiving a payment order represents a crucial moment to act. It is essential to file an objection within 40 days of its notification. In this proceeding, the nullity of the suretyship can be asserted as the primary defense to contest the bank's claim. Acting promptly is essential to avoid losing the right to defend yourself.

Can I recover the sums I have already paid to the bank?

Yes, it is a concrete possibility. If the suretyship is declared partially or totally null and void, payments made by the guarantor based on the null clauses can be considered 'undue.' Consequently, it is possible to initiate legal action, known as an action for the recovery of undue payments, to obtain the refund of sums paid and not owed, plus legal interest.

Contact an Expert Lawyer in Milan

The matter of bank suretyships is complex and full of legal technicalities. Entrusting yourself to an improvised defense can irreparably compromise your position. If you have signed a suretyship and fear it may be null and void, or if you have already received a payment demand from the bank, it is crucial to act with the support of a professional. The Bianucci Law Firm, located in Milan at Via Alberto da Giussano 26, offers qualified legal assistance for the protection of guarantors. Contact Avv. Marco Bianucci for an in-depth evaluation of your case and to define the most effective strategy for your defense.