Guarantee and Responsibility: Commentary on Ordinance No. 16822 of 2024

In an increasingly complex legal context, Ordinance No. 16822 of 06/17/2024, issued by the Court of Cassation, provides important clarifications on the figure of the guarantor and their responsibilities in the event of a deterioration in the financial conditions of the primary debtor. This decision, in particular, emphasizes that being a minority shareholder in a debtor company does not exempt the guarantor from their obligations, especially in the absence of prior authorization from the creditor.

The Legal Context of Guarantee

A guarantee is a contract through which a person (guarantor) undertakes to ensure the payment of another's debt (primary debtor). It is governed by the Civil Code, specifically Article 1956, which establishes the conditions and methods for the release of the guarantor. The ordinance in question fits into this framework, highlighting specific circumstances that can influence the position of the guarantor.

Obligation of the guarantor - Financial conditions of the primary debtor - Change - Cumulative status of minority shareholder and guarantor of the debtor company - Release of the guarantor due to lack of prior authorization for credit - Exclusion - Basis. In the guarantee for future obligation, in the event of a deterioration of the financial conditions of the primary debtor company after the signing of the guarantee contract, the guarantor who is also a minority shareholder of the guaranteed company is not released in the absence of prior authorization from the creditor for the granting of further credit, because, in exercising the prerogatives of a member of the assembly (at least during the approval of the financial statements), they have the concrete possibility of knowing the economic situation, and their culpable ignorance cannot justify a "substitutive" obligation of vigilance and control on the part of the lending bank.

The Implications of the Ruling

The Court clarified that the guarantor, even if a minority shareholder, cannot be considered released from their obligations solely due to the deterioration of the financial conditions of the primary debtor. This aspect is crucial, as it implies that the guarantor must maintain a certain degree of vigilance and knowledge about the economic situation of the debtor company.

  • The guarantor has access to the economic information of the company.
  • Their ignorance regarding financial conditions cannot justify the absence of vigilance.
  • The lack of authorization from the creditor does not exempt the guarantor from their obligations.

Conclusions

Ordinance No. 16822 of 2024 represents an important reference point for understanding the dynamics between guarantor and debtor. It confirms that the responsibility of the guarantor cannot be evaded and that, as a minority shareholder, they have the obligation to actively inform themselves about the economic situation of the guaranteed company. This principle not only protects the rights of the creditor but also promotes greater responsibility among those who assume guarantee roles within companies. In a constantly evolving legal context, it is essential for professionals in the field to stay updated on such rulings to provide the best support to their clients.

Bianucci Law Firm