The Issue of Fideiussiones Conforming to the ABI Scheme

Receiving a payment order or an immediate payment request from a credit institution, as a guarantor for a company or a family member, is a situation that causes deep concern. Often, however, guarantors are unaware that the suretyship contract they have signed may contain illegitimate clauses. The Court of Cassation, with several fundamental rulings, has established that suretyships drafted by strictly following the scheme prepared by the ABI (Italian Banking Association) in 2003, which was censured by the Bank of Italy, are affected by partial nullity. As an expert lawyer in damages compensation in Milan, Avv. Marco Bianucci assists entrepreneurs and private individuals in analyzing these contracts, verifying the existence of the prerequisites to oppose the bank's claims and to request compensation for the damages suffered.

The Nullity of Clauses and the Right to Compensation

The core of the legal issue lies in the violation of antitrust legislation (art. 2 of Law no. 287/1990). By uniformly using the ABI scheme, banks have effectively restricted competition, imposing excessively burdensome conditions on the guarantor. The contested clauses specifically concern the revival of the guarantee even after the extinction of the principal debt, the waiver of the terms of art. 1957 of the Italian Civil Code, and the extension of the guarantee to repayment obligations arising from the invalidity of the principal relationship. The nullity of these clauses can not only paralyze the bank's debt recovery action but also pave the way for a claim for damages. A guarantor who has suffered economic prejudice due to the application of these null clauses is entitled to compensation. Jurisprudence recognizes that the anti-competitive conduct of credit institutions can generate an unjust damage, quantifiable and compensable in civil proceedings.

The Bianucci Law Firm's Approach to Null Suretyships

The approach of Avv. Marco Bianucci, a lawyer expert in damages compensation and banking law in Milan, is based on rigorous preliminary and documentary analysis. Not all suretyships are null: it is necessary to compare the contract text signed by the client with the censured ABI scheme no. 33/2005 of the Bank of Italy. The Bianucci Law Firm examines each individual clause to detect literal or substantial coincidence with the prohibited provisions. Once a violation is ascertained, the defense strategy is articulated on two fronts: opposition to any payment order to have the nullity of the guarantee declared, and a counterclaim to obtain compensation for the patrimonial damages suffered by the client. This working method, based on concreteness and constant updating with respect to the rulings of the United Sections, aims to free the guarantor from unjust obligations and to restore the economic balance violated by the credit institution.

Frequently Asked Questions

How do I know if my suretyship is null?

A technical examination of the contract is essential to determine nullity. If the suretyship was signed from 2003 onwards and contains clauses of survival, revival, and waiver of the terms ex art. 1957 of the Italian Civil Code, identical to those of the ABI scheme, there is a high probability that it is partially null. It is necessary to submit the document for evaluation by a professional expert in the field.

What happens if the suretyship is declared partially null?

Partial nullity means that the illegitimate clauses are considered as not having been written, while the rest of the contract remains valid. However, the removal of clauses such as the derogation from art. 1957 of the Italian Civil Code has disruptive effects: often the bank forfeits the right to enforce the guarantee because it did not act against the principal debtor within the six months provided by law, effectively releasing the guarantor.

Can I claim compensation if I have already paid the bank?

Yes, it is possible to take action for the repetition of undue payments and for damages. If the payment was made based on null clauses, the sum paid was not due. Avv. Marco Bianucci assesses the statute of limitations and the feasibility of recovering sums unduly collected by the credit institution on a case-by-case basis.

Does nullity also apply to specific suretyships or only to omnibus ones?

Initially, the issue concerned omnibus suretyships, i.e., those that guarantee all present and future debts. However, more recent jurisprudence tends to extend protection also to specific suretyships, provided it is demonstrated that the bank used the ABI model in a standardized way to impose anti-competitive conditions on the client.

Request an Evaluation of Your Suretyship

If you have signed a bank guarantee and fear that it may contain unfair or null clauses, or if you have received legal documents from the bank, it is crucial to act promptly. Contact Avv. Marco Bianucci for an in-depth review of your situation. The Bianucci Law Firm at via Alberto da Giussano 26 in Milan is at your disposal to define the best strategy for protecting your assets and to assess the prerequisites for a damages compensation action.