1) Italian Supreme Court: on failure to agree in writing individual contractual clauses and burden of proof

The holder of a bank account who brings an action for the recovery of sums received by the bank on the ground of the nullity of individual contractual clauses for their failure to be agreed in writing cannot subsequently allege the failure to agree the contract itself in writing, the burden of proving which lies in any event on the claimant and cannot be considered satisfied by the mere non-compliance of the bank with a request under Article 119, fourth paragraph, of the Consolidated Banking Act.

By Order No. 12216/2026, published on 1 May 2026, the Italian Supreme Court again ruled on the action for recovery of sums unduly paid brought by the holder of a bank account against the credit institution, specifying the pleading and evidentiary burdens incumbent on the claimant who alleges the failure to agree in writing individual contractual clauses or the account contract itself.

The dispute subject to the proceedings concerned the action brought by a company to obtain, among other things, a declaration of the nullity of the provisions on above-legal-rate debit interest applied by the bank on two advance account agreements (conti anticipi), on the ground that they had not been agreed in writing, and the related order for the credit institution to refund the sums charged on that basis.

On appeal against the first-instance judgment, which had been entirely in favour of the claimant, the Court of Appeal reformed the Tribunal’s ruling on that point on the basis of two considerations. In the first place, the Court of Appeal held that, since the claimant had alleged in the introductory pleading at first instance only the failure to agree in writing the clauses on debit interest, it had forfeited the right to allege the failure to agree in writing the advance account contracts (contratti di conto anticipi) themselves. In the second place, the Court of Appeal held that, even if the claimant were considered entitled to expand its claim in that direction, the burden of proving the failure to agree the contracts in writing would in any event lie with it, and that burden would have to be discharged by means of a prior request for copies of the contracts from the bank (pursuant to Article 117, first paragraph, of the Consolidated Banking Act) or by means of an application for their production in the course of the proceedings (pursuant to Article 210 of the Code of Civil Procedure).

Against those rulings of the Court of Appeal, the company raised two grounds of appeal on a point of law centred on the argument that the burden of proving the agreement in writing of the advance account contracts (contratti di conto anticipi) should lie with the bank, in compliance with the principle of proximity of evidence (vicinanza della prova).

By way of preliminary observation, the Italian Supreme Court reaffirmed the principle that “the account holder who claims the restitution of sums unduly paid by reason of void clauses must prove the absence of the cause of the payments, by producing in the proceedings the contract containing those clauses”.

After that, the Italian Supreme Court characterised as primarily inadmissible the two grounds of appeal under examination, on the ground that they were directed against an ancillary head of the impugned judgment (that concerning the proof of the failure to agree the contracts in writing) rather than against the truly decisive head of the judgment (that which had held the subject matter of the dispute to be confined to the failure to agree individual contractual clauses in writing).

The two grounds of appeal were accordingly held to be inadmissible, as “the appellant contests the impugned decisions as regards the allocation of the burden of proof on the failure to agree the advance account contracts in writing, given that the Court of Appeal addressed that matter only by way of hypothesis, having found that the challenges set out in the original statement of claim had focused only on the absence of the written agreement of certain clauses and that, accordingly, the [company] had not pleaded, at first instance, that the advance account contracts had been concluded only verbally”.

In any event, the Italian Supreme Court also held the two grounds of appeal of the company relating to the burden of proof to be unfounded, finding that the burden of proving the failure to agree the contracts in writing could not be considered discharged by the mere non-compliance of the credit institution with the request under Article 119, fourth paragraph, of the Consolidated Banking Act submitted by the company prior to the commencement of the proceedings.

On that point, the Italian Supreme Court noted in particular that “the appellant did not allege having complained, at first instance, of the Bank’s failure to comply with the obligation to deliver of the advance account contracts at the time of their conclusion, pursuant to Article 117, paragraph 1, of the Consolidated Banking Act, so that, in the absence of such a complaint, there was no obligation on the Bank to demonstrate that it had complied with that delivery”. The Supreme Court further rejected an additional argument of the company based on the fact that the bank had produced the current account contracts (contratti di conto corrente) but not the advance account contracts (contratti di conto anticipi) in the proceedings, observing that from that circumstance “no proof can be drawn […] as to the agreement in writing of the clauses of the advance account contracts (contratti di conto anticipi)“.

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2) Italian Supreme Court: the clause of a guarantee contract (contratto di fideiussione) derogating from Article 1957, first paragraph, of the Italian Civil Code is unfair where the guarantor is a consumer

The clause of a guarantee contract (contratto di fideiussione) derogating from Article 1957, first paragraph, of the Italian Civil Code by exempting the creditor from compliance with the six-month time limit for bringing proceedings against the principal debtor is an unfair term and void where the guarantor is a consumer, with the consequence that its invalidity must be raised by the court of its own motion (d’ufficio).

By Order No. 11858/2026, published on 29 April 2026, the Italian Supreme Court ruled on the validity of a clause derogating from Article 1957, first paragraph, of the Civil Code inserted in the general conditions of a guarantee contract (contratto di fideiussione) incumbent on a consumer, confirming its nullity as an unfair term and reaffirming the duty of the court to raise its nullity of its own motion (d’ufficio).

The dispute subject to the proceedings originated from an order for payment (decreto ingiuntivo) obtained by a bank against two guarantors for the payment of sums owed by a principal debtor company. In both stages of the proceedings challenging the order for payment (giudizio di opposizione a decreto ingiuntivo), the two guarantors had argued that the bank should be considered to have forfeited the right to enforce the personal guarantee, as the application for the order for payment (ricorso per decreto ingiuntivo) had been filed more than six months after the expiry of the principal obligation (pursuant to Article 1957, first paragraph, of the Italian Civil Code) and the clause derogating from Article 1957, first paragraph, of the Italian Civil Code agreed in the guarantee contract (contratto di fideiussione) should be held void as an unfair term (vessatoria) pursuant to consumer protection legislation. The Court of Appeal had, however, rejected that plea of the opposing parties, holding that, since they had omitted to raise it in the statement of claim challenging the order for payment, they had forfeited the right to raise it in the course of the proceedings on the merits.

Seized of the appeal on a point of law lodged by the two opposing parties, the Italian Supreme Court first confirmed that “the clause of a guarantee contract (contratto di fideiussione) derogating from Article 1957, first paragraph, of the Italian Civil Code, in favor of the creditor, by exempting it from compliance with the six-month time limit provided therein for enforcing its rights against the defaulting principal debtor, must be considered unfair (vessatoria) pursuant to Article 1469-bis of the Civil Code (applicable ratione temporis)”. This is because, “in derogating in broader terms from the six-month period following the expiry of the principal obligation provided for by Article 1957 of the Italian Civil Code, the period during which the Bank may bring proceedings not only against the principal obligor but also against the guarantor, holding an obligation accessory to that of the principal debtor, who also remains bound towards the guaranteed creditor Bank, is extended”.

The Supreme Court further reaffirmed that the said consumer protection legislation, now incorporated into the Consumer Code (Legislative Decree No. 206 of 6 September 2005), “stands alongside the — separate and different but concurrent — framework under Articles 1341, second paragraph, and 1342 of the Italian Civil Code on onerous clauses in general conditions of contract, relating to contracts unilaterally drawn up by one party on the basis of standard forms or formularies for use in an indefinite series of transactions”.

From this the Italian Supreme Court drew the conclusion that, in respect of a clause derogating from Article 1957, first paragraph, of the Italian Civil Code incumbent on a consumer guarantor, “whether by means of the unilateral preparation of standard forms or formularies for use in an indefinite series of transactions (Articles 1341, second paragraph, 1342 of the Civil Code) or on the occasion of the conclusion of a single contract drawn up for a specific transaction, through the unilateral preparation and imposition of the relevant contractual content, the professional party may indeed assert its (de facto) contractual authority over the consumer”, the consequence being a “breach of the private autonomy of the consumer […] [which] founds, in both scenarios, the application of the consumer protection framework in question”.

In the light of the foregoing, the Supreme Court accordingly quashed with remittal the judgment of the Court of Appeal, on the ground that, by failing to apply the said consumer protection framework, “the court of merits failed to verify of its own motion the scope of the contractual clause waiving the time limits under Article 1957 of the Italian Civil Code, as it was required to do, it being an unfair term (clausola vessatoria) that creates to the detriment of the consumer a significant imbalance in the rights and obligations arising from the contrac”.

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