A bank sought payment of a debt exceeding €200,000 from two people who had guaranteed a company’s obligations. The guarantee contained a clause relieving the bank of the time limit in Article 1957 of the Italian Civil Code. Could the guarantee remain enforceable without that limit?
In this case handled by Studio Pauciulo, the Court of Naples found that both guarantors were consumers: the case file showed no role for them in the debtor company’s business. The contractual waiver was therefore held inoperative against them, even though they had separately signed it.
The time limit protecting the guarantor
Article 1957 requires a creditor to take action within six months after the principal obligation falls due and to pursue that action diligently. If the required steps are not taken in time, the creditor loses the right to enforce the guarantee.
The account was closed on 25 July 2017, while the application for a payment order was filed on 30 March 2018. The Court found that the six-month period had expired and upheld the defence based on the bank’s loss of rights. The two consumer guarantors were released from the payment claim.
Why the decision matters
Consumer status must be assessed by looking at the guarantor’s own position, even when the guarantee secures a company’s debt. Separately signing a clause drafted by the bank does not, by itself, remove consumer protection.
The judgment shows why the guarantee and the sequence of dates must be examined closely: a waiver of Article 1957 does not always prevent a consumer guarantor from relying on the creditor’s failure to act in time.