Confirmatory Deposit and Security Deposit: Analysis of Ordinance No. 8989 of 2024

In the Italian legal landscape, the distinction between a confirmatory deposit and a security deposit holds crucial importance, as highlighted by Ordinance No. 8989 of April 4, 2024. This ruling, issued by the Court of Cassation, provides significant clarifications regarding the nature of the sums of money delivered at the conclusion of a contract. Understanding these differences is fundamental for the parties involved, as they affect the rights and obligations arising from the agreement.

The Nature of the Sum of Money in the Contract

According to the ruling, the sum of money delivered from one contracting party to another can be classified as either a confirmatory deposit or a security deposit, depending on the intentions of the parties. In particular, it states:

Delivery of a sum of money connected to the conclusion of a contract - Nature of confirmatory deposit or security deposit - Distinctive characteristics - Function of the security deposit. The sum of money delivered from one contracting party to another at the time of the conclusion of the contract has the nature of a confirmatory deposit if it is evident that the parties intended to pursue the purposes outlined in Article 1385 of the Civil Code, attributing to it the function of conventional damage liquidation for breach of contract. Conversely, it has the nature of a security deposit if it has been provided as a guarantee for a potential obligation to compensate for damage caused by the breach of the guarantor, allowing the creditor to be satisfied from the delivered sum for the amount of the actual damage suffered.

This maxim clarifies the distinguishing criteria between the two legal figures, emphasizing the importance of the parties' consent and the intentions expressed at the time of the contract's execution.

The Legal Implications of the Distinction

The legal consequences arising from the qualification of a sum as a deposit or security are significant:

  • In the event of a breach, the confirmatory deposit allows the creditor to retain the sum received as compensation for the damage suffered.
  • The security deposit, on the other hand, serves to guarantee a potential compensation, and the creditor can act on it only if the actual damage suffered is proven.

These differences not only influence legal strategies in contractual disputes but also daily business decisions, making a correct qualification essential already at the negotiation stage.

Conclusions

In conclusion, Ordinance No. 8989 of 2024 represents an important resource for professionals and contracting parties, offering clarifications on the distinction between a confirmatory deposit and a security deposit. Understanding these differences is crucial to avoid disputes and ensure that the parties' intentions are respected, thereby protecting the legal rights of each party. In a context where contracts play a fundamental role in commercial relationships, careful and conscious management of these aspects can make the difference between a profitable agreement and a legal dispute.

Bianucci Law Firm