Fideiussione Omnibus e Antitrust

A possible turning point by the Court of Cassation on the nullity of omnibus guarantees (sureties) due to limits on competition.

On 30 April 2021, the First Section of the Supreme Court with interlocutory order no. 11486, referred to the First President the assessment regarding the need to transmit to the United Sections the question relating to the legal consequences of a bank guarantee for which the nullity is contested due to violation of the Antitrust Law.

The omnibus suretyship is a personal guarantee which requires the guarantor to pay all debts, present and future, that the principal debtor has assumed or will assume towards a bank or other creditor. Through the omnibus clause, the creditor is not required to renew and/or integrate the guarantees already provided by the same guarantor every time a new credit/debt relationship is established with the debtor. The practice of using this instrument within the credit market is legitimized in particular by the following rules: art. 1938 of the Civil Code pursuant to which "the guarantee can also be given for a conditional or future obligation with the provision, in this last case, of the maximum guaranteed amount" and art. 1956 c.c. according to which "the guarantor for a future obligation is released if the creditor, without special authorization from the guarantor, has given credit to the third party, despite knowing that the latter's financial conditions had become such as to make the satisfaction of the credit significantly more difficult. The prior waiver of the guarantor to avail himself of the release is not valid".

The hazard that characterizes the "omnibus" guarantee has raised several doubts due to the breadth of its scope (also extending to future obligations), giving rise to a jurisprudential/doctrinal debate regarding the possible illegitimacy of the same. The issue relating to the potential illegitimacy of omnibus sureties has been addressed several times by the Supreme Court. If initially the orientation of the Court of Cassation considered said guarantees partially null, now the constant jurisprudential orientation is aimed at considering that said guarantees are affected by total nullity. For this reason, these guarantees - drawn up on the contractual scheme prepared by the ABI in October 2003 and judged by the Competition Authority to be the result of a horizontal agreement restrictive of competition as per the Bank of Italy's assessment, no. 55 of 2 May 2005 - are currently subjected to evaluation by the Supreme Court due to the evident presence of clauses restricting competition which render the guarantee irremediably void. We therefore await the decision of the United Sections which will put an end to the age-old issue.

******

The guarantors who have signed aso-called guarantee omnibus drawn up on the form prepared by the ABI, can now challenge them in order to obtain a declaration of total nullity from the competent courts and consequently be exonerated from payment.