Clauses matching the ABI standard form in a guarantee do not automatically become void in every situation.

A distinction is needed between guarantee type, signing date, scope of the Bank of Italy’s findings and proof of an actual link between the individual contract and an anticompetitive practice.

In Judgment No. 24825, filed on 28 August 2026, the Joint Civil Divisions clarified three practical issues: the evidential value of Bank of Italy Decision No. 55 of 2 May 2005 outside the period examined; antitrust protection for specific guarantees; and the effect of payment ‘on first demand’ clauses on the time bar under Article 1957 of the Italian Civil Code.

The case

The dispute arose from objections to a payment order issued by the Syracuse Court against two guarantors.

The guarantees were signed in 2015 to secure obligations under a current account and an unsecured loan. They concerned specified transactions, unlike omnibus guarantees covering all present and future bank–debtor relationships up to a maximum amount.

The objectors said the agreements reproduced the three ABI clauses examined by the Bank of Italy: reinstatement, derogation from Article 1957, and survival. They particularly disputed the derogation, arguing that the creditor had lost the guarantee by not taking the required action in time.

The creditor company argued that specific guarantees signed in 2015 fell outside the material and temporal scope of the Bank of Italy’s findings. The Court therefore referred the issues to the Joint Divisions for a preliminary ruling.

The previous framework

The Joint Divisions had already held that contracts downstream of an anticompetitive agreement may be partially void insofar as they reproduce clauses covered by the prohibited agreement.

Nullity normally affects individual clauses; it extends to the whole contract only if the parties would not have concluded the guarantee without those provisions.

The new judgment retains this approach but addresses the preliminary question: showing that the signed guarantee actually results from an agreement or concerted practice restricting competition.

Temporal limits of the Bank of Italy’s findings

Decision No. 55 of 2005 examined the ABI omnibus guarantee form and its uniform use during the investigated period.

Those findings cannot automatically extend to all guarantees signed before or after that period. Outside it, the decision remains relevant evidence but does not alone establish that the same anticompetitive practice was still, or already, operating at signature.

A literal match with the ABI form is thus an element to assess, not automatically decisive proof. The court must determine whether the contractual model reflected widespread standardisation attributable to a concerted practice capable of restricting competition in the relevant period.

Protection can also cover specific guarantees

Calling a guarantee ‘specific’ does not exclude antitrust law. A guarantee for a particular transaction may also be a downstream contract resulting from an anticompetitive practice.

It must nevertheless be shown that standardisation affected this category too. As the 2005 findings directly concerned omnibus guarantees, applying them to specific guarantees requires further proof of uniform use of those clauses in the relevant market and period.

Specific guarantees are not immune: they require a more rigorous evidential inquiry using the procedural tools available.

The ‘on first demand’ clause and Article 1957

The Court distinguishes exemption from Article 1957 time limits from payment ‘on first demand’. Their functions and scope differ.

Nullity of the first does not automatically invalidate the second. A valid ‘on first demand’ clause may allow the creditor to preserve the guarantee through a timely out-of-court demand to the guarantor, without necessarily suing within that period.

Assessment must cover the complete guarantee, clause validity and scope, the start of the period, the demand’s recipient, timing and content, and any effect of other provisions.

What the Joint Divisions decided

The Court did not directly decide the objections or declare the 2015 guarantees valid or void.

On the preliminary reference, it stated guiding principles and returned the file to the Syracuse Court. That court must establish the link to an anticompetitive practice, the further evidence provided, validity and applicability of the ‘on first demand’ clause, and whether an appropriate extrajudicial demand was sent in time.

Practical consequences

A guarantor should not rely solely on textual correspondence with the ABI form. Evidence should address:

  • the guarantee’s date;
  • its omnibus or specific nature;
  • the model’s prevalence in the relevant period and market;
  • any absence of individual negotiation;
  • elements linking the contract to anticompetitive standardisation.

A bank or assignee must produce the complete agreement and accurately reconstruct Article 1957 steps. An extrajudicial demand may suffice under an ‘on first demand’ clause, but its timeliness, content and proper receipt by the guarantor must be proved.

The judgment matters for objections to payment orders and enforcement of guaranteed debts. Review must cover the whole contract and chronology of recovery steps, not just the three challenged clauses.

Conclusions

Judgment No. 24825/2026 avoids two automatic conclusions: a specific or post-2005 guarantee is not excluded from antitrust protection, but reproducing ABI clauses does not always suffice for nullity.

Proof of the link between individual contract and anticompetitive practice in the relevant market and period becomes central. Under Article 1957 too, the agreement must be assessed as a whole: a void time-limit derogation does not necessarily eliminate a separate ‘on first demand’ clause’s effects.

The decision limits automatic conclusions and stresses rigorous documentary and evidential assessment of each guarantee.