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The Illegal Granting of Credit or the Dilemma of the Good Banker

1. The autonomous legitimacy of the trustee

In the course of 2021, with two close rulings (Cass., June 30, 2021, n.18610 and Cass., September 14, 2021, n. 24725), the Supreme Court reached a significant milestone in the systematic elaboration and reconstruction of the liability of the Bank for abusive granting of credit; This opens up a new and incandescent front in the always tense relationship between insolvency proceedings and banking institutions.

More specifically, the Supreme Court recognized the autonomous legitimacy of the bankruptcy trustee in asserting the responsibility of the Bank for the illegal granting of credit under the double profile of taking over the rights already due to the bankrupt in the exercise of the liability action against the Bank and, on the other hand, in the exercise of the “mass” action to protect the creditor class, prejudiced by the abusive granting of credit to the now “decocted” company.

The Court of Cassation has deviated from its current policy according to which the action for damages brought by the trustee for damages suffered by the creditor class would not have been attributable to the category of mass actions, with the consequence of excluding the active legitimacy of the trustee to autonomously assert in court the compensation claims claimed against the Bank by the company's creditors; in this perspective, it was believed that the trustee was entitled to take direct action against third parties (such as the Bank) only if this action was connected "primarily and directly" to an unlawful act committed by the bankrupt company through its directors, being able to third to be involved only if in competition with the bankrupt and not, instead, autonomously.

Today the judges of legitimacy affirm, on the contrary, that the action concerning the assessment of the illegal granting of credit, aimed at obtaining the reimbursement of the damages suffered by the entire creditor class, can be qualified as a mass action and therefore recognizes , the active legitimacy of the bankruptcy trustee (and, therefore, - it goes without saying - also of the liquidator in compulsory administrative liquidation procedures and of the commissioner in extraordinary administration procedures of large companies in crisis) towards the Bank, in relation to both burdening the company as a result of the "abusive" credit granting, and those suffered by the credit class as a whole, in relation to what it has lost as a result of the granting of credit to the company in a situation of irreversible crisis.

The liability of the Bank for abusive granting of credit becomes enforceable autonomously by the trustee and, therefore, totally released from any parallel responsibility of the corporate bodies for abusive use of credit.

According to the new perspective of the Supreme Court, the liability of the Bank towards the bankrupt company has a contractual nature pursuant to art. 1218 cc for direct violation of obligations governing credit agreements, while that towards the creditor class has an extra-contractual or aquilian nature.

2. Outlines of the Bank's responsibility

The recent rulings of the Supreme Court are, from another and different point of view, also relevant in that they outline with good precision the contours of the Bank's liability for abusive granting of credit.

The conduct of the lender is to be considered careless when it is in contrast with the obligations envisaged by the regulatory system considered as a whole. In this context, the following are important: (i) the primary legal obligations pursuant to art. 1176, paragraph 2, of the Italian Civil Code; (ii) primary and secondary sector regulations, as well as (iii) international agreements.

From the set of these rules, the lender has the obligation to comply with the principle of sound and correct management that permeates the entire banking system and requires the Bank to verify the creditworthiness of the customer who has requested a loan on the basis of adequate information that it is up to the lender himself to find.

In fact, the Supreme Court observes, in particular in the aforementioned ruling of last September 2021, as "from the regulatory system as a whole emerges [a] the primary importance for the legal system of the obligation to assess with prudence, by the 'banking institution, the granting of credit to the financed subjects, in particular where in economic difficulty. The disbursement of credit that can be qualified as 'abusive', as it is carried out, with willful misconduct or negligence, to a company that appears in a situation of economic-financial difficulty and in the absence of concrete prospects of overcoming the crisis, integrates an offense of the lender, for having failed to fulfill his primary duties of prudent management, which obliges him to pay compensation for the damage,

The boundary - in practice - between licit and illicit financing is often blurred and the Supreme Court, in the last ruling cited, underlines that the loans granted to companies in crisis are not in themselves illicit; the dividing line can be identified if the granting of the loan alters "the correctness of market relations".

The Supreme Court is aware of the complexity of the choice of the "good banker", "as it is between the risk of non-recovery of the amount previously financed and the definitive compromise of the economic situation of the debtor, on the one hand, and the responsibility from reckless granting of credit, on the other hand "and delegates to the judicial bodies the task of assessing whether the Bank, in granting the loan to the company, has acted imprudently (apart from the case of possible fraud), negligence, violation of laws, regulations, orders or disciplines, or vice versa, while granting credit, acted with all due caution, in order to prevent the event.

This "exemption" - observes the Supreme Court - will occur where the judicial body, for example, ascertains that the Bank has operated with the intent of corporate restructuring, providing credit to a company susceptible, according to an ex ante assessment , to overcoming the crisis or at least of rational permanence on the market.

The legitimacy of the Bank's conduct in granting credit to a company in difficulty therefore presupposes that it has carried out a preliminary assessment from which it is possible to infer reasonable prospects for the recovery of the applicant for the loan; this ex ante evaluation must be carried out, "on the basis of documents, data and information acquired", from which the willingness and possibility of the financed party to use the credit for the purpose of corporate restructuring can be inferred in good faith, according to an objective project, reasonable and feasible.

As perfectly clarified by the Supreme Court, "what is relevant, therefore, is no longer the fact in itself that the financed company is in a state of crisis or insolvency, even if known to the lender, so that the latter has thus caused a delay in the declaration of bankruptcy: what matters is only the lack of well-founded prospects, on the basis of reasonableness and an ex ante evaluation, of overcoming that crisis. In essence, often the boundary between "deserving" and "abusive" financing will be based on the reasonableness and feasibility of a business plan ".

The assessment of the industrial plan carried out in compliance with the general principle of “reasonableness” therefore becomes a decisive element in order to exclude any liability of the Bank for careless credit assignment to a company in crisis.

3. Defensive strategies in the light of the new jurisprudential orientation

The Supreme Court shows great balance in understanding that the autonomous legitimacy of the trustee to act against the Bank can open a wide and articulated front of judicial initiatives and, as we have seen, identifies a valuable countermeasure suitable for paralyzing any promotion "a carpet "of civil cases.

The Bank can, with good approximation, avoid incurring liability where it is able to prove ex post that it has assessed ex ante the adequacy of the business plan prepared by the financed company, even when the state of insolvency is evident and obvious. outside of a specific reorganization procedure.

It becomes strategic for the banking class to have documented evaluation processes regarding the feasibility of the assumptions contained in the business plans prepared by the customer; in the absence of this, the real risk is that the bankruptcy proceedings legitimately try to fish in the deep pockets of the banking institutions.

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Maurizio Irrera's picture

Full Professor of Commercial Law at the University of Turin.

He lectures on corporate and commercial law at conferences, conventions and study meetings.

He is the author of over 100 scientific articles, monographs, essays, encyclopaedia entries, articles and comments on judgements on matters of commercial, corporate and insolvency law.