Many entrepreneurs, shareholders and relatives have signed guarantees requested by banks to obtain loans, credit lines or facilities. Few know that not every guarantee is valid in all its parts.

The Court of Cassation has consolidated an important principle: guarantees reproducing ABI clauses criticised by the Bank of Italy may be partially void, significantly affecting the bank’s ability to enforce them.

In Judgment No. 41994 of 30 December 2021, the Joint Divisions clarified that nullity generally affects clauses reproducing the anticompetitive agreement; the remainder stays valid unless the parties would not have contracted without those clauses.

Judgment No. 15953 of 24 May 2026 further clarified that this can apply not only to omnibus guarantees but also to guarantees for specific transactions, provided a functional link to the prohibited agreement is established.

Which clauses are most often challenged?

Review particularly concerns clauses 2, 6 and 8 of the ABI form:

  • reinstatement clause, requiring reimbursement to the bank of sums returned because payments were annulled, ineffective or revoked;
  • derogation from Article 1957 of the Civil Code, exempting the bank from the statutory deadline for preserving the guarantee;
  • survival clause, maintaining the guarantor’s obligation even if the debtor’s obligation to the bank is declared invalid.

Not every guarantee is automatically void

A bank guarantee is not automatically invalid. The following must be checked:

  • when it was signed;
  • the wording actually used;
  • correspondence with the criticised clauses;
  • the link to the anticompetitive agreement;
  • the clauses’ actual effect on the individual relationship.

Only technical examination of the documents can establish grounds for partial nullity or other defences, such as loss of the bank’s guarantee under Article 1957 where applicable.

Why review a guarantee today?

Many payment orders and demands still rely on guarantees signed years ago. Preventive review can establish whether the bank may enforce the guarantee or whether case law recognises available defences.

Have you signed a bank guarantee?

Studio Legale Pauciulo can preliminarily assess documents for void clauses and identify possible defence strategies in light of recent Court of Cassation case law.