The First Civil Section of the Supreme Court was called to rule on the appeal presented against the sentence of the Court of Appeal of Naples by a company (the Society) and its guarantors, who requested the restitution of sums unduly paid for the illegitimate application of interest on bank current accounts opened by the Company at its own bank (the Bank).
In particular, in the resistance of the Bank which objected, inter alia, the statute of limitations of the plaintiff’s claim, the Court of Naples following an expert opinion, declared the cessation of the matter of dispute of the claims proposed by the Company, which in the meantime had been canceled from the company register, rejecting the related claims of the guarantors. Subsequently, the Court of Appeal of Naples declared the appeal presented by the Company inadmissible, as it was canceled from the business register, and condemned the Bank to pay a sum corresponding to the balance of the current account, equal to Euro 456,746.48, in favor of the sole shareholder of the now extinct Company, furthermore declaring the guarantors’ request to be absorbed.
Following this ruling, the Bank lodged an appeal in cassation on the basis of three reasons and, in particular:
- violation and false application of articles. 2033 and 2697 cod. civ., 112 and 101 cod. proc. civil and the failure to examine a decisive fact, as the Court of Appeal was not aware that the request, relating to a request for conviction pursuant to art. 2033 cod. civ., was inadmissible due to the lack of the essential prerequisite constituted by the extinction of the account and the payment of the balance of all the items considered invalid or illegitimate, once the conversion of the request for condemnation into a request for mere verification of the same balance; in fact the element of closing the account and/or paying the balance should have been considered as a condition of admissibility of the recovery action, and not just of admissibility;
- violation or false application of articles. 2496 code. civil and 110 cod. proc. civ., the Court of Appeal having conformed to a jurisprudential direction in contrast with the solution validated by the United Sections with sentences nos. 6070, 6071 and 6072 of 2013, the succession of shareholders of extinguished companies having to be excluded in mere claims, even where already actioned, and in uncertain or illiquid credits; in this sense the contested decision would be incorrect, having addressed the topic as if it were a question of liquid and defined credit rights; moreover, this can be obtained from the extensive disquisition on the methods of expression of tacit remission, which concerns rights that are at least liquid and of a known or determinable amount;
- violation or false application of articles. 2697, 2033, 2934 cod. civ., 112 and 132 cod. proc. civ., and the omitted examination of decisive fact, to have the sentence decided the case without any in-depth analysis, having no expert witness at all “proposed a dual calculation hypothesis“, as instead held by the territorial court, but a double distinction which is in turn divided into two others and in particular: a first distinction based on the expenses connected to the maintenance and/or functioning of the existing current account relationship, and a second based on expenses linked to “third party relationships”, such as to require a specific agreement; so what was finally held by the Court of Appeal was a simple sub-distinction, relating to this second hypothesis and focused on the elimination of expenses and interests also from third party accounts and other relationships. Thus, in essence, the choice of the territorial court had fallen on a solution having as its underlying element an account purified of any expense and interest even relating to relationships extraneous to the judgment, not even specifically referred to; on which various relationships no dispute had ever been established, as there was finally no verification of any critical aspects or any illegitimate positions applied by the bank.
The Supreme Court focused particularly on the second ground of appeal, as in the last decade it has generated a divergence of direction in the legitimacy jurisprudence itself. The issue specifically concerns the possibility of configuring a tacit waiver of the company’s credits, not included in the final liquidation balance sheet, as the very effect of cancellation from the business register, with consequent extinction, while the proceedings aimed at having them ascertained are pending. On this point the United Sections have expressed the well-known principle according to which, if the extinction of the company, of persons or of capital, following cancellation from the business register, does not correspond to the cessation of any legal relationship belonging to the extinguished company , a succession type phenomenon is determined, by virtue of which, however, on the active side, the rights and assets not included in the liquidation balance sheet of the extinct company are transferred to the shareholders, under a regime of joint ownership or undivided communion, with the exclusion of mere claims, even if actioned or actionable in court, and credits that are still uncertain or illiquid, the inclusion of which in said financial statements would have required further activity (judicial or extrajudicial), the failure of which to be carried out by the liquidator allows us to believe that the company has given up, in favor of a quicker conclusion of the extinction proceedings.
Also on the basis of this direction, the issue of finding a qualified presumption of renunciation of claims so definable has been progressively valorised in a non-univocal way, with no secondary practical effect. And in this sense, indeed, the Cass. Section 3 no. 15782-16 held that in the event of voluntary cancellation of a company from the business register, carried out pending a compensation judgment introduced by the company itself, it is presumed that the latter has tacitly renounced the claim relating to the credit, even if uncertain and illiquid , for the determination of which the liquidator has not taken action, preferring to conclude the procedure for terminating the company, entailing this presumption that no succession phenomenon of the claim will arise sub judiceso that the shareholders of the extinct company are not entitled to appeal the appeal ruling that rejected the claim.
This direction, however, found conflict between two simple sections of the Supreme Court, thus allowing us to highlight that, following the rulings of the United Sections, including the one cited above, a conflict has perpetuated within the SC, concerning in particular the possibility of configure the tacit waiver of some of the company’s credits, sub judice and illiquid, and not included in the final liquidation balance sheet, where this is canceled from the company register pending litigation, with consequent extinction and impossibility of transfer to the shareholders also for the purposes of the art. 110 cod. proc. Civil..
Therefore, in the context of this ruling, the SC noting that, on the one hand, it has believed in several places that it could find a point of balance in the affirmation of an inverse presumption, excluding (in fact) any automatism: the cancellation of the company does not determine the automatic waiver of the disputed credit, because the forgiveness of the debt presupposes an unequivocal will to this effect, which must be specifically attached and proven; and on the other hand, in contrast, the automatism resulting from the distinction made by the United Sections of 2013 has once again been placed at the center of the problem, reducing its profile – albeit certainly – but on the opposite side of the distribution of the burden of proof: the abdicating intention is presumed as long as the opposite is not demonstrated, i.e. that the credit, originally activated by the company and by definition illiquid, has not been implicitly renounced. The Court, called to rule in this case, in consideration of the conflict in jurisprudence and the particular importance of the underlying issue, deemed it necessary to refer the documents to the First President for the possible assignment of the appeal to the United Sections in order to resolve the conflict .
