Waiver of Debt and Abuse of Office: Analysis of Judgment Cass. Pen., Section V, No. 7354/2024

The recent judgment of the Court of Cassation, Criminal Section V, No. 7354 of February 19, 2024, offers important insights for legal practitioners and company directors. The ruling concerns the case of A.A., convicted of abuse of office following the waiver of a debt owed by II Progetto Verde Srl to II Borgo Nuovo Srl. The Court overturned the previous judgment, refocusing attention on key elements of the law and jurisprudence on the subject.

The Case and the Court's Decision

In the case at hand, the Court of Appeal of Florence had convicted A.A. to the penalty of justice for waiving a debt of over 774,000 euros during a meeting of the investee company. The decision was based on the alleged responsibility for financial damage caused to the company. However, A.A. appealed the judgment, arguing that the waiver was a neutral act, as the debt was already subordinated and the debtor's assets were insufficient.

Jurisprudence requires that financial damage be intentionally caused to the company, with specific intent on the part of the director.

Fundamental Legal Principles

The Court highlighted several fundamental principles regarding abuse of office. In particular, it reiterated that, to constitute the crime under art. 2634 of the Civil Code, certain prerequisites must be met:

• An interest of the director in conflict with that of the company.
• The resolution of an act of disposal of company assets.
• An event of financial damage intentionally caused to the company.
• The specific aim of procuring an unjust profit for oneself or others.

This judgment clarifies that the mere waiver of a debt, in the absence of intent to harm the company, cannot constitute a crime. The Court also emphasized that the assessment of the prejudice arising from the waiver must consider the dynamics of economic activity and not be limited to static data, such as the debtor's real estate assets.

Conclusions

In conclusion, judgment No. 7354/2024 of the Court of Cassation represents an important step forward in defining the boundaries of abuse of office in the corporate sphere. Directors must be aware of the need to avoid conflicts of interest and to act in the best interests of the company. This decision provides a clearer legal framework on how actions of debt waiver and related liabilities should be interpreted, emphasizing the importance of specific intent for the crime to be constituted.