When the existence of a contract is disputed, who must prove its terms?

A company challenged charges applied by a bank to three current accounts. The case, handled by Studio Legale Pauciulo, raised a decisive question: who must prove the banking terms when the customer disputes that they were agreed in writing?

The bank argued that the claim should fail because the account holder had not filed the contracts. The court distinguished two situations. A customer challenging the validity of clauses in a contract whose conclusion they acknowledge must prove their claim. Where the customer denies that the contract or particular terms were ever recorded in writing, the bank must prove the agreements on which it bases its charges.

In this case, the bank did not produce the contracts. The court accepted the court-appointed expert’s recalculation: without proof of a valid agreement on interest rates, the statutory substitute rates under Article 117 of the Italian Banking Act applied. Charges for overdraft commissions not shown to have been agreed in writing and compound interest without a valid clause were also excluded.

The recalculation established a balance of €60,063.12 in the company’s favour. The court ordered the bank to repay that amount, plus interest and litigation costs.

Failure to produce a contract does not automatically entitle a customer to repayment of every charge. The pleadings, account statements and evidence of the applicable terms must be examined. In this case, that examination established the account holder’s credit.