With Order no. 18610 of 30 June 2021, Section I of the Court of Cassation affirmed some important principles on the subject of granting loans to companies in economic and financial difficulty.
In this specific case, the Court of Appeal of Rome rejected, due to lack of legal standing, the claims of the administrator for compensation for damages and reinstatement of the assets of the bankrupt company made against the banks involved, which had been accused of irresponsible lending. The Bankruptcy then appealed to the Court of Cassation, alleging, among other grounds, violation or misapplication of certain provisions of the bankruptcy law – including of Articles 43 and 146 – in order to affirm the administrator’s legal standing to act against the banks for the damage caused by them to the bankrupt’s assets as result of their irresponsible lending.
In the aforementioned order, the Court ruled that the bankruptcy administrator has standing to act against the bank for irresponsible lending, in the case of an unlawful new loan or maintenance of ongoing contracts, which has caused a decrease in the assets of the bankrupt person, for the direct damage to the company resulting from the loan and for the injury to the entire class of creditors owing to the loss of the asset guarantee pursuant to Article 2740 of the Civil Code.
Moreover, the bank, in the event that it is an irresponsible lender, may be jointly liable with the corporate bodies under Article 146 of the Bankruptcy Law, on the basis of joint liability pursuant to Article 2055 of the Civil Code, since they are the causes of the same damage, without requiring that joint actions be brought against the corporate bodies and the lender, since this is merely an optional joint liability.