The contract must be declared null and void, as a copy of the same was not delivered to the bank customer. It is therefore the plaintiff’s right to “obtain the reimbursement of all sums paid” for a total amount of 217,580 euros in addition to interest and costs incurred for the judgment. Customer therefore who will have to be compensated for what should have been an insurance and which instead – the victims’ lawyers had denounced – had turned out to be a derivative financial instrument.
A void contract
This is the decision taken by the Ordinary Court of Como with the Second Civil Section, judge Arianna Toppan. The lawyers Marco Dalla Zanna and Franco Fabiani brought the matter to the Court on behalf of their client Società Agricola Arte e Giardini. With a lawsuit brought in October 2021, against the Bnl bank in which the company had opened the loan, the small agricultural business complained before the judge that it had been convinced to take out a risky derivative financial instrument “sold” – according to what was claimed by lawyers – as insurance to cover yourself in the event of an increase in interest rates on the mortgage taken out. An operation which however had led to charges of over 217 thousand euros. This is where the lawsuit arose, as the company’s lawyers argued that the contract was null and void also due to the incomplete delivery of the financial and contractual documents to the investor, thus violating the terms and duties established for the credit institution.
The lawyers had also asked the judge to “verify whether the proposed operation fell within the scope of adequate and appropriate financial instruments with respect to the financial profile of the plaintiff company” obviously based on “its investment profiles”. And in the end, as mentioned, the judge ruled in favor of the bank’s customers, ordering the repayment of sums of over 217 thousand euros. In fact, among the various objections, the judge considered that the bank had not delivered the framework contract to the customer, i.e. that it had not explained to the Società Agricola Arte e Giardini what the rules of the game were before executing the derivative financial instrument, violating as required by sector regulations.
Amounts to be returned
In short, for the Court of Como, «it was not proven in any way in court, by the bank on which the relevant burden of proof rested, that the copy» of the contract was delivered «at the time of signing» which therefore must « be declared null” with the right to reimbursement of the sums paid over the years.
The bank, which appeared at the hearing, responded to the accusations by claiming that it had provided the customer with “all the necessary information in relation to the disputed transaction”, including those relating to costs and commissions. Furthermore, the credit institution had pointed out, “all the documentation had been signed”. But all this was not enough to avoid conviction.
