Insights

With judgment no. 25977 dated September 6, 2023, the Supreme Court ruled on clauses in financing contracts that exclude, in the case of early repayment, the reimbursement of costs already incurred by the customer. In particular, the nullity of the clause allowing the bank to retain financial fees and insurance costs in the event of early repayment of the loan was declared, as this clause would result in an imbalance between the parties, which Article 33 of Legislative Decree no. 206/2005 (Consumer Code) qualifies as the main characteristic of so-called "abusive" clauses. The judge, even ex officio, must verify that the disputed contract does not contain abusive clauses, and if it does, declare them null and void. If, in the case of early repayment by the customer, the total costs already incurred in relation to the contract are not returned on a pro rata basis, an imbalance between the parties is created because it allows the bank to retain sums that are intended for the entire duration of the contract, despite the performance being limited to a shorter period of time (see also ruling by Supreme Court no.19565/2020). Therefore, when negotiating a financing contract, it is advisable not to accept the inclusion of such abusive clauses to prevent scenarios of nullity and subsequent disputes with the bank from the outset.