1) Italian Supreme Court: repayment plan and the burden of proof of a loan claim in bankruptcy proceedings

By order No. 25523/2026, published on 18 September 2026, the First Civil Section of the Italian Supreme Court ruled on the burden of proof of a loan claim when seeking admission to the list of liabilities in bankruptcy proceedings, clarifying the role of the repayment plan.

The case originated from the dismissal of an objection to the list of liabilities: the court had refused to admit the claim of an assignee bank for failure to produce the repayment plan, considered essential for quantifying the outstanding debt.

The Italian Supreme Court reaffirmed that the repayment plan does not constitute necessary proof of a loan claim, clarifying that, in the case of a variable-rate loan, it represents a mere theoretical projection subject to variation depending on movements in the agreed rate. It is for the creditor to prove the existence of the instrument, its being prior in time to the bankruptcy, and the contractual terms of the repayment, while it is for the insolvency receiver to raise and prove any payments already made.

The Court found a violation of Articles 115 and 116 of the Italian Code of Civil Procedure in the decision of the Court of Caltanissetta, which, although correctly stating the principle, had in fact made the outcome of the dispute conditional on production of the repayment plan, the absence of which had been treated as precluding the careful assessment of the other evidence available, including, where appropriate, through recourse to a court-appointed technical expert.

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2) Italian Supreme Court: simple bankruptcy and the late filing of a bankruptcy petition

By judgment No. 33938/2026, published on 18 September 2026, the Fifth Criminal Section of the Italian Supreme Court ruled on simple bankruptcy for worsening the insolvency within the meaning of Article 217, paragraph 1, No. 4, of the Bankruptcy Law.

The Italian Supreme Court clarified that delay in filing a bankruptcy petition does not automatically give rise to the offense of simple bankruptcy: a mere increase in certain liabilities is not sufficient, an actual worsening of the undertaking’s overall economic and financial position being required instead, attributable to gross negligence on the part of the director. In the case at hand, in the face of significant losses already shown in the 2011 financial statements, the bankruptcy petition had been filed only in 2018, and the meeting for the reduction of share capital had been convened only in 2015, circumstances which, according to the Court, had brought about an actual worsening of the insolvency.

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