Banking wear. Important victory of a banking user in Cassation: the default interest rates above the threshold rate agreed upon in the contract are not due as usurious. Accepted the appeal of a banking user: the 108 / 96 law on usury makes no distinction between compensatory and default interests. The pact that establishes them is null and only the legal interests are returned
(by Giovanni D'AGATA) Important victory of a user against the bank in Cassation with the Supreme Court that also baton judges of merit and the Bank of Italy that disregard some principles that should be crystallized for some time in terms of bank usury and that pushes the "Rights Window" to continue to protect all those who have stipulated ultralegal interests when signing mortgages, loans or current accounts. For the Judges of Piazza Cavour with the ordinance 27442 / 18, published on October 30 by the third civil section, in fact, the agreement must be declared null and void with which conventional interests of moratorium agree that on the stipulation date go beyond the indicated threshold rate from the anti-usury legislation for the type of operation to which the agreement refers. The reason lies in the fact that the 108 / 96 law does not distinguish between corresponding and moratori interests in imposing nullity.
Similarly, this is due to the extensive formula of the 644 Cp and 1 articles of the 394 / 00 decree. On the other hand, even the administrative body itself explicitly admits that default interest is subject to anti-usury legislation in the 3 July 2013 circular. Accepted the appeal of a company that had entered into a lease and the guarantor, who see their reasons recognized after a double defeat before the Court of Milan and the Court of Appeal of Lombardy. The arguments of the first and second degree judges who exclude nullity on the importance of "ontological" diversity between matching interests and moratories are not persuasive. The thesis argued is that the one remunerate a capital, the others constitute a conventional sanction and an indirect coercion to dissuade the debtor from the non-fulfillment and therefore assimilable to the penal clause. Again, as the former are necessary and with a view to profit and any seconds and are necessary for compensation.
But the distinction does not however justify a different discipline in terms of usury, which would be systematic and contrasting with the rationale of the 108 / 96 law, as well as "with a thousand-year legal experience". However, the law does not include the obligation to detect the conventional average late payment: the 108 / 96 law is based on the detection of average rates by type of contract and is incompatible with the detection of average rates for type of legal title. The parties can then avail themselves of the right to derogate from the legal rate provided for by the 5 article of the 312 / 02 legislative decree for commercial transactions: the system of the law, therefore, is in itself rational. Finally, the judges of legitimacy add that the application of Article 1815, second paragraph of the Civil Code, to the usurious moratorium interests does not seem to be sustainable, because the rule refers only to the corresponding interests and considering that the cause of both is always different.
Ultimately, in the face of usurious default interest and the nullity of the clause, it is reasonable to attribute interest to the injured party at the legal rate according to the general rules. For Giovanni D'Agata, president of the "Rights Desk", this is a very important decision not only for the historical-legal reconstruction of the question, but also because it places a firm point on a debated issue that often sees losing in the classrooms. justice of merit users who have complained of higher than legal rates due to a restrictive interpretation that will no longer make sense to be given today by the Supreme Court.