ABI Sureties After the Joint Sections’ Ruling No. 24825/2026: Nullity Is No Longer Automatic

ByStudio Avv. Cocozza

For years, ABI sureties have been one of the hottest fronts in Italian banking litigation: it was often enough for a guarantee to reproduce three clauses of the template drawn up by the Italian Banking Association (ABI) to argue that it was null. With its ruling of 28 August 2026, no. 24825, the Joint Sections of the Italian Court of Cassation have changed perspective: nullity is no longer automatic and must be established on the facts of each case. In this article we look at what was decided and what it means in practice for guarantors, businesses and banks.

Background: the ABI template and the 2021 Joint Sections ruling

The story begins with Decision no. 55 of 2 May 2005 of the Bank of Italy, which found an anticompetitive agreement concerning the ABI template for omnibus sureties (all-monies guarantees). Three clauses were under scrutiny:

  • the revival clause, which requires the guarantor to repay what the creditor has had to return, for example following a clawback action or the ineffectiveness of a payment;
  • the survival clause, which keeps the guarantee alive even if the principal obligation is invalid;
  • the waiver of the time limits under Article 1957 of the Civil Code, which relieves the creditor of the duty to enforce its rights against the debtor within the statutory deadlines.

With ruling no. 41994 of 30 December 2021, the Joint Sections held that contracts “downstream” of the cartel are affected by partial nullity for breach of competition law. Many questions remained open, however, and lower courts often proceeded as if they had already been settled. This led to the preliminary reference made by the Court of Syracuse (order of 1 August 2025), which resulted in this year’s decision.

What the Joint Sections decided in ruling no. 24825/2026

1. The Bank of Italy decision is evidence, not a shortcut

According to the Joint Sections, Decision no. 55/2005 is privileged evidence of the anticompetitive agreement only for omnibus sureties signed in the period 2002–2005, that is, the period actually examined by the Authority.

For guarantees issued before or after that period, the decision does not lose its relevance, but becomes a mere piece of evidence, albeit with high probative value, which the court must weigh together with the other evidence. In particular:

  • for sureties dated before 2002, it must be verified whether a uniform banking practice matching the censured template already existed;
  • for those dated after 2005, the court must assess the possible “dynamic projection” of the agreement, taking into account the time it physiologically takes for the effects of an unfair practice to fade.

The bank remains free to show that, in the specific case, the guarantee was the result of genuine and free individual negotiation.

2. Specific sureties: nullity must be proven

The 2005 decision expressly concerned omnibus sureties only. For specific sureties (guarantees given for a particular debt), anyone who raises nullity must therefore prove that the agreement extended to that type of guarantee, by any means of evidence, including a request that the court issue an order for the production of documents.

One important mitigation: if the three clauses appear standardised in specific sureties too, without individual negotiation, there is no need to prove a subjective or intentional element of the restrictive agreement. The burden of proof is eased, but it does not disappear.

3. The “on first demand” clause and forfeiture under Article 1957 of the Civil Code

The third principle concerns the effects of the nullity of the waiver of Article 1957 of the Civil Code. If the surety also contains an “on first demand” payment clause, the creditor avoids forfeiture by sending the guarantor, within the statutory period, a simple out-of-court request for payment, without having to bring legal proceedings. The nullity of the waiver therefore revives the ordinary time limits, but does not wipe out the simplified recovery mechanism of the on-first-demand clause.

First applications in the courts

Lower courts have already begun to apply this new approach. The Court of Rome, specialised business section (judgment of 17 September 2026, no. 13021), held that reproducing the ABI clauses is not enough, on its own, to prove the agreement when the surety was signed outside the 2002–2005 period. The Court of Genoa (no. 3720 of 14 September 2026) relied on the Joint Sections also for omnibus sureties dated after the period covered by the finding.

What changes in practice for guarantors, businesses and banks

The new framework shifts the focus of litigation from the automatic effect of reproducing the clauses to a concrete assessment of the anticompetitive agreement. According to early commentators, the framework is more favourable to creditors than what had taken hold in part of the lower-court case law after 2021. This does not mean nullity is ruled out: it means it is harder to prove, especially outside the 2002–2005 window and for specific guarantees.

If you have given a guarantee (as an entrepreneur, shareholder, director or family member) or have been called upon by a bank, it is worth checking five things straight away:

  1. The date of signing: does it fall within 2002–2005 or not?
  2. The type of guarantee: omnibus or specific?
  3. The clauses included, and whether they were genuinely negotiated.
  4. The bank’s conduct: was an out-of-court request sent within the Article 1957 time limits? Is there an on-first-demand clause?
  5. The evidence available or obtainable, including a request for production of documents.

In pending proceedings, defence strategies should be reviewed in light of the new principles, to check whether the allegations made and the evidence gathered are still consistent with the Court’s guidance, within the limits allowed by the stage the case has reached.

The issue also has corporate implications. Those in senior roles who give personal guarantees for the company should also consider the matters discussed in our article on directors’ liability in corporate law. For businesses in difficulty, managing bank guarantees is intertwined with corporate crisis and restructuring tools.

If the guarantor is an individual who acted outside their trade or profession, consumer protection issues may also arise, to be assessed case by case. Before going to court, it is often worth exploring a solution through mediation and assisted negotiation.

How to avoid problems: well-drafted contracts and guarantees

For companies seeking financing, and for the professionals who advise them, the lesson is clear: the content of guarantees must be read and, where possible, negotiated. Contract advice and out-of-court assistance before signing make it possible to spot critical clauses and to document any negotiation. For a broader overview of business relationships, see our page on commercial and corporate law.

Conclusions

The Joint Sections do not close the litigation over ABI sureties, but they redefine its rules of proof: no more automatic effects, and more attention to the date, the type of guarantee and the parties’ actual conduct. Each position should therefore be examined individually, with a careful reconstruction of the documents and timelines.

If you have signed a surety or a bank has called on you to pay, Studio Legale Cocozza can help you assess your position: get in touch here for an initial discussion.

This article is for information purposes only and does not constitute legal advice. Each case requires a specific analysis of the documents and circumstances.

References

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