On the light of the judgment of the United Chambers of the Italian Supreme Court – n. 898 of January 16, 2018.
2.Notes on the function of subscription in formal contracts; 3. The rationale of art. 23 TUF: The nullities of structure and nullities of function; 4. The different types of nullities regulated by art. 23 TUF and art. 117 TUB: Relative nullities and absolute nullities; 5. The letter of art. 23 T.U.F. excluding the applicability of the TUB; 6. The free form of investment orders and the non-monetary nature of framework contracts; 7. Conclusions.
The very recent decision of the United Sections of the Supreme Court of Cassation, that is the sentence n. 898 of January 16, 2018, followed by the almost analogous sentence n. 1653/2018, issued a few days after the first, regarding the contracts-framework “Single signature ” regulated by art. 23 of the Legislative Decree no. 24/2/1998 n. 58 (T.U.F.), i.e. was a radical change from what had been the prevailing orientation of the Court of Cassation on this issue. The Supreme Court, in fact, had pronounced on several occasions on the matter in hand declaring the nullity of the single-signature framework contracts. Ex multis: “Article 23 of Legislative Decree 24 February 1998, n. 58 provides that contracts relating to the provision of investment services must be drawn up in writing under penalty of nullity. The written form, when required ad substantiam, is a constituent element of the contract, in the sense that the document must be the formal and direct expression of the will of the parties to conclude a given contract with a given cause, subject matter and certain agreements, therefore the document must have been created for the specific purpose of expressing in writing the will of the parties to the conclusion of the contract. In application of this principle, the framework contract bearing the signature of the customer alone is invalid because of the inadmissibility of the validation of the null contract ex 1423 c. and cannot be validated by the executive documents of the contract (accountants, confirmations of execution, etc.), irrespective of the verification of the specific content and signature of such entries” (Cass. n. 5919/2016).
The broad and complex reasoning of the above-mentioned judgment followed an almost well-established line which stated, precisely, the nullity of the contract if the relevant form had been signed only by the investor. More specifically, the Supreme Court of Cassation had come to the conclusion that the nullity in question, as nullity of protection, could be raised by the investor alone and had pushed to assert that it could be asserted “also limited to some of the purchase orders by which was executed” (Cass. n. 8395/2016).
In different sense, in fact, there were only two isolated decisions of the Court of Cassation (Cass. n. 4564/2012 and Cass. n. 17740/2015), so much so that the issue under consideration had been brought to the attention of the United Sections as a matter of major importance ex art. 374, paragraph 2, c.p.c. (Italian Code of Civil Procedure), and not to settle a contrast between simple sections or within the same section.
- Notes on the function of subscription in formal contracts.
By order No. 10447 of 27.4.2017 the First Chamber of the Court of Cassation had referred to the First President for the possible assignment to the United Sections the decision on the need, for the validity of the contract-securities trading framework, the signature of the financial intermediary, as well as that of the investor. Indeed, it is clear from the analysis of the order in question that, although in the jurisprudence of legality there was a clear predominance of the approach which considers null the contract without the signature of the intermediary.
There had been some disagreements in the doctrine and the case law on the subject. Well, the United Sections of the Supreme Court have settled these disputes by emphasizing the distinction between structural nullities and “In the financial intermediation contract, the production in court of the negotiation form relating to the framework contract signed only by the investor does not meet the obligation of the written form “ad substantiam” imposed, on pain of nullity, from Art. 23 d.lgs. n. 58 of 1998 and, being a nullity of protection, the same can be objected by the investor also limited to some of the purchase orders by which was executed” (Cass. n. 8395/2016; V. ALSO: Cass. n. 3623/2016; Cass. n. 7068/2016; Cass. n. 8396/2016; Cass. n. 10331/2016) functional nullities, and between absolute and relative nullities.
In fact, it is stated in this judgment that not all formal requirements are equal: “If the ad substantiam form, in its own solemnity of real estate exchanges typical of the land economy, acts, in the context of equal relations, as the criterion of imputation of the declaration, in addition to serving to promote– for the protection of both contractors– the goods of clarity in content, weighting for the commitment made and the seriousness of the agreement, as well as distinguishing mere negotiations from the final act, It must also be considered whether, instead, where the parties are not on an equal footing, there is a weak“” of the relationship, to avoid the risk of insufficient reflection or exploitation by the other contractor intervenes, then, the form, or formality “of protection” whose purpose is precisely to protect the specific interest of the contractor “weak” to understand and be promptly and fully informed on all aspects of the contractual affair. In short, the formalism of negotiation (or neo-formalism) that has been observed in recent times with particular reference to contracts characterized by information asymmetries (think of consumer contracts, in addition to those proper to financial intermediation) would be aimed at the protection of the “”weak”” part. Therefore, the nullity which results from the violation of the precepts on form in these contracts pursues eminently protective purposes. We speak, therefore, of “”nullity of function”” instead of “nullity of structure””. The consequence of this approach is that if the nullity is functional to the protection of the investor’s right to have the necessary information, so that he is the only person entitled to invoke it, such requirement would be satisfied only by the signature of the same customer. The opposite approach which requires the signature of the intermediary for the purpose of the validity of the contract turns out, as already mentioned above, supported by numerous and recent decisions of the Court of Cassation (Cass. 14.03.2017, n. 6559 Cass. 24.03.2016, n. 5919; Cass. 11.04.2016, n. 7068; Cass. 27.04.2016, n. 8395; Cass. 27.04.2016, n. 8396; Cass. 19.05.2016, n. 331; Cass. 01. (Court of Appeal in Bologna 13.01.2017, n. 89; Court of Appeal in Milano 19.04.2017, n. 1680; Trib. Rimini, ord. 02.02.2012). The above-mentioned case law, while recognizing that in the financial and banking field the burden of the necessary written form of contracts is imposed for protective purposes, nevertheless considers it necessary for the bank to sign up. This is not incompatible with the preparation of the contract through the exchange of two documents, both of the same meaning, each signed by the other contractor, provided that both the negotiating statements are formalized. Any written and directed manifestation to counterpart of the intent to avail of the contract, not reproducing in full the content of the contract, is not able to avoid the violation of art. 23 TUF, IT IS. The United Sections, contrary to any expectation given by the consolidated orientation of the simple sections, have pronounced themselves according to the following principle of law: “The requirement of the written form of the contract-the investment services framework provided for in art. Article 23 of Legislative Decree no. 24/2/1998, n. 58, the contract is drawn up in writing and a copy is given to the client, and only the subscription of the investor is sufficient, as the intermediary does not need to be signed, whose consent can be inferred as conclusive behavior by the same kept”” (Civil Cassation, United Section, 16 January 2018, n. 898). The same principle of law was also affirmed in the next judgment of United Sections No. 1653/2018.
- The ratio of art. 23 TUF: The nullities of structure and nullities of function.
The United Sections, in their reasoning to the above mentioned judgment, focused in particular on an innovative interpretation of the rationale underlying the norm set out in art. 23 T.U.F., stating that the function of such nullity is to ensure that the investor is placed in the position of “”to know and to be able, if necessary, to verify during the report, the implementing rules and the rules concerning the validity of the contract, which is specific to the specific sector of the financial market”””.
In other words, what prevails is the purpose and/or purpose of the norm. In this sense, it is stated in this judgment that “”the formal constraint laid down by the legislator”” should be understood “according to what is the function of the norm and not automatically recalling the general norm on nullities “””. The rule of art. 23 TUF must therefore be read with a functional interpretation, which takes into account the function of protecting the investor’s particular interest, the only person entitled to claim nullity. The nullity of structure and nullity of function, as a result of this interpretation, the underwriting of the intermediary is a not useful formal requirement and exceeds the purpose and the ratio of the formal forecast, while a different reading (i.e., non-functional) would make “””disproportionate”” the same prediction of nullity for lack of form. 7 Traditionally (ex art. 2702, 1350 and 1418 cc), in fact, the signing of the contract has two functions, one that has regard to the structure of the contract, namely the attribution of the same to the person who has signed it, and the other, concerning the function of the contract, or the agreement concluded between the parties. Civil law, of which art. 1350 and 1418 cc, puts the written form on the plane of the structure as the constituent element of the contract, and not exclusively on the plane of the function. Given the purpose and specificity of the discipline referred to in art. 23 T.U.F., the United Sections considered “”absorbed the structural element of the subscription of that party, the intermediary, who, made certain the achievement of the normative scope with the subscription of the customer on the contractual module prepared from the intermediary and the delivery of the copy of the writing in object, would not carry out some specific function”” . According to the United Sections, in fact, if the contract is found to be null and void, If the financial intermediary fails to sign up, there is a risk that decisions will be taken contrary to the principle of proportionality. The nullity, in fact, can be enforced only by the investor and is manifested as a sanction for the intermediary. If the same nullity should be found simply for lack of subscription by the intermediary, Therefore, there is a risk of reaching a result disproportionate to the function to which the form is preordained in the forecast in art. 23 T.U.F. However, it seems appropriate to point out that, contrary to what is stated in the previous decisions of the Court of Cassation mentioned above, in the reasoning of the judgment at issue is art. 23 of Legislative Decree no. 58/1998 is not 8 in common with art. 117T.U.B., leading the interpreter to assume that the interpretation made by the United Sections on financial contracts should not apply where it concerns banking contracts, such as, for example, bank account credit agreements or current account and similar agreements. And indeed, the norms referred to in Articles. 23 T.U.F. and 117 T.U.B. were interpreted in a similar way by constant jurisprudence given the analogy they present in the literal formulation. Art. 23 T.U.F., in fact, reads:
Contracts relating to the provision of investment services, and, where applicable, contracts relating to the provision of ancillary services, shall be drawn up in writing, in accordance with the delegated acts of Directive 2014/65/EU, and one copy shall be delivered to customers. The consob, after consulting the Banca d’ Italia, may lay down by regulation that, for justified reasons or in relation to the professional nature of the contractors, particular types of contract may or should be concluded in another form, ensuring an appropriate level of assurance for retail customers. In cases of non-compliance with the prescribed form, the contract shall be void (1). 2. There shall be no agreement to refer to any use for the determination of the consideration due from the customer and any other charge to be borne by the customer. In such cases nothing is due. 3. In the cases provided for in paragraphs 1 and 2, nullity can only be invoked by the client [“” ]”. Similarly, art. 117 T.U.B. states that: “1. Contracts are drawn up in writing and a copy is delivered to customers. 2. The ICRC may provide that, for technical reasons, particular contracts may be concluded in another form. 3. In the event of non-compliance with the prescribed form, the contract shall be void [“” ].””
- The different types of nullities regulated by art. 23 TUF and art. 117 TUB: Relative nullities and absolute nullities.
The relative nullities and absolute nullities.
The similarity of the disciplines with regard to the requirement of the written form and the delivery of the copy to the customer under penalty of nullity is evident; However, it seems right to point out that in the Banking Act there is no reference to the question of the case concerning the person entitled to claim that invalidity at the court. On the other hand, legal standing in proceedings concerning the nullity of the bank contract is governed by art. 127 T.U.B. which, in paragraph 2, n.2, states that: “”The nullities provided for in this Title operate only for the benefit of the client and can be taken over automatically by the judge”””. It should be remembered that “”the present title”” referred to in Article 127 T.U.B. appears to be Title IV of the Banking Act, which also includes art. 117 T.U.B. and, therefore, the nullities for which art. 127 T.U.B. provides for the possibility of automatic detection, without doubt, the nullities provided for by art. 117 T.U.F. in the matter of bank contracts for which the written form ab substantiam is provided.
Relative nullities and absolute nullities. Although in both cases regulated by the TUF and the TUB it is a matter of nullity of protection placed to the protection of the weak contractor, therefore, the nullities provided by the T.U.F. turn out to be relative nullity, exceptional only at the request of a party, whereas those provided for by the T.U.B. are absolute nullities, as they are also detectable ex officio by the judge and, therefore, unlike those related, the latter are not sanitized. The nullities of protection, widely provided also by the Consumer Code (d.lgs. n. 206/2005)are among the remedies designed to ensure consumer protection and consist of a remedy to safeguard the minimum and mandatory content of the contract concluded by the consumer to prevent the introduction of clauses abusive, and the consequent ineffectiveness of the part of the contractual settlement or of the individual contra legem clause. The different rules on relative nullity and absolute nullity should, however, also be extended in the case of nullity of protection.
Not surprisingly, the same United Sections, in the pronunciation in examination, have qualified the nullities previewed from the T.U.F. like relative nullity and have decreed that: “”if a relative nullity comes instituted from the legislator, as such intended to protect directly and immediately not a general interest, but first and foremost a particular interest, the interpreter must be careful to limit the scope of privileged protection to the extent that the interest protected by nullity is really involved , otherwise leading to distorted or even opportunistic consequences””. The classification of nullities ex art. 23 T.U.F. as relative nullity presumably goes to accentuate the differentiation, in terms of sanity, of the same from the nullities provided by the T.U.B., which emerge, in the face of the procedural discipline dictated by art. 127 T.U.B., as absolute nullity. The Court of Cassation, moreover, affirmed that “”The unofficial detectability of the nullities of the negotiations must be extended also to those so-called of protection, to be configured, like the indications coming 11 from the Court of Justice, as a species of the wider genus represented by the former, protecting the same fundamental interests and values “”“ such as the proper functioning of the market (art. 41 cost.) and at least formal equality between strong and weak contractors (art. 3 cost.) ““which transcend those of the individual. The official relief of the nullity of protection ““ moreover “”“ operates in function of the only interest of the weak contractor, that is the person entitled to propose the nullity action , in such a way avoiding that the counterparty can “”“ if you have interest in ““ solicit the official powers of the judge for his own interest, destined to remain outside the orbit of guardianship”” (Cass. n. 923/2017; See also: Cass. S.U. n. 26242/2014; Cass. S.U. n. 14828/2012; Cass. n. 17257/2013). The particular interest and the general interest protected in this judgment, therefore, the Court of Cassation ruled that the nullities of protection are placed to the protection of fundamental values, of constitutional rank. The same, moreover, cannot be considered sanitized, or non-existent, if they are qualifying as absolute nullity because, if the contrary were to be affirmed, it would conflict with the very concept of absolute nullity, as required by art. 157 c.p.c. The absolute nullities of protection provided by the T.U.B. must be qualified, therefore, as nullity intended to protect a general interest, unlike those ex art. 23 T.U.F. which, as relative nullity, are aimed at protecting the client’s particular interest. Logically, therefore, the principle of law affirmed by the SS.UU. cannot be extended to nullities provided for by the T.U. law. with the sentence n. 898/18 in comment because such principle of right is afferent only the nullities previewed from the T.U.F. 12 It is clear, therefore, that the principle that framework contracts “”single-signature”” are not null applies to bank contracts. The letter of art. 23 TUF, which excludes the applicability of the TUB The same Article 23 T.U.F., moreover, in the fourth paragraph, states that “”The provisions of Title VI, Chapter I of T.U. Banking does not apply to investment services nor to the ancillary service provided for in Article 1, paragraph 6, letter f)””.
Among the provisions of Title VI, Chapter I, of the T.U.B. we include just the art. 117 T.U.B.. It would therefore be the same letter as art. 23 T.U.F. to establish an insuperable distinction between the discipline in question and that provided by art. 117 T.U.B. and, consequently, also in relation to the nullities provided for in the two articles in question. By virtue of the provisions of art. 23 T.U.F., financial contracts are not subject to the rules concerning bank contracts. The principle of law expressed by the SS.UU. in relation to art. 23 T.U.F. cannot, therefore, be applied to contracts governed by different rules and, moreover, regulated by a discipline that is explicitly excluded from the rule itself. Otherwise, there would be a conflict with the literal dictate of the rule under consideration on the interpretation of which, it is hardly appropriate to recall, the entire pronunciation of the United Sections is based. 13 6. The free form of investment orders and the non-material nature of framework contracts even in its previous rulings it implicitly made a distinction between framework financial intermediation contracts and bank contracts, in so far as, despite the consolidated jurisprudence guidance regarding the nullity of the framework contract for lack of form, the Court of Cassation had repeatedly stated that “individual investment orders”, established the signing and validity of the framework contract and the absence of any special forms provided for by it, although being of a negotiating nature, can be freely given. The obligation of the written form on penalty of nullity of the contract established in art. 23 d.lgs. n.58/1998 is provided only for the framework contract”” (Cass. n. 2816/2016; V. also Cass. n. 384/2012). The same principle, in fact, has not been reaffirmed by the Supreme Court with regard to bank contracts concluded pursuant to art. 117 T.U.B., in so far as the written form required ab substantiam for such contracts (as for example, for the contract of opening of credit in current account), is imposed, on penalty of nullity , detectable by the court of its own motion, pursuant to art. 127 T.U.B. and, generally, also distinguishes the further operations of a negotiating nature that derive from it. In conclusion, it can be said that the United Sections, in affirming the above-mentioned principle of law concerning the validity of the financial intermediation framework contracts “”They did not in any way wish to apply the same principle to bank contracts governed by art. 117 T.U.B.. 14 The United Sections, in fact, in the ample motivation of the most recent pronunciation in comment referred only to art. 23 T.U.F., whose ratio is, moreover, placed at the base of the innovative interpretation of which it has been said. The marked differences in the discipline of the two articles of law, despite the literal similarities in them that had led the previous jurisprudence to share them, find justification both in the same letter of art. 23, fourth paragraph, T.U.F., both in the automatic detection of nullities provided by art. 127 T.U.B.
These last ones, therefore, absolute nullity, as opposed to T. those expected being only at the request of the client, they are, as defined by the United Sections, “”relative nullity””. The non-material nature of framework contracts.
Finally, it should be stressed that framework contracts in the field of financial investment are not of a capital nature, since they merely dictate the rules of future implementing acts, that is, individual investment acts, which “”“moreover, ““are freeform. They are the latter, and not the first, to have a property content. Unlike, the bank contracts referred to in art. 117 TUB all have an immediate and direct patrimonial content. Which justifies the different discipline dictated by art. 117 TUB. To further evidence of what is claimed in this work, it seems, therefore, right to recall that precisely in the matter of bank contracts, the same Cassation recently stated that “”the form in which the bank communicates the actual opening of a current account, if it has not signed it, is a mere act 15 recognizing that such a contract has been concluded and is, Therefore, in the absence of documents signed by both parties, it is not appropriate to supplement the written form “”ad substantiam”” required by art. 117 d.lgs. n. 385 of 1993, to nothing noting that the bank has produced it in court, place that, in the contracts for which the written form is required “”substantiad am” “the legal production of the writing by the contractor who did not sign it achieves an equivalent of the signing and, therefore, the finalization of the contract, but with effect “”ex nunc”” and not “”ex tunc””” (Court fo Cassation, Civil Section 1, Judgment of 3 January 2017, n. 36).
In conclusion, whatever profile you want to examine the issue, it must be excluded that the framework contracts “”single signature””, regulated by the Consolidated Finance Act, are comparable to the contracts “”single signature”” “The Court of First Instance held that the Court of First Instance had failed to observe the rules of the Banking Act, both for reasons of a literal and semantic nature, such as the express exclusion of the application of the TUB to financial contracts laid down in art. 23 TUF, both because of the different legal nature of nullity regulated by art. 23 TUF, compared to that regulated by art. 127 TUB. The latter, in fact, has been expressly configured by the legislator as an absolute nullity of protection, detectable ex officio by the judge, not amenable, because in protection of general and constitutionally guaranteed interests, how the proper functioning of the market (art. 41 cost.) and the formal equality between strong contractors and weak contractors (art. 3 cost.), that is of fundamental values to safeguard of contracts with patrimonial content, like those banks. The first, on the other hand, has been qualified by the legislator as a relative nullity of protection and, as such, can be healed, because it serves particular interests. Rome, 6th March 2018.