The Supreme Court decides again the issue of the validity of the so called “single signature” agreements, i.e. the copy of banking and finance agreements, kept in the bank’s archives, bearing the client’s signature and not the bank’s one. The Supreme Court holds that these agreements are null and void, thus unenforceable vis à vis the account holder.
Usually, as practice in the banking and finance relationships, execution of the agreement does not occur with the exchange of the bank’s proposal and the following client’s acceptance, but with subscription, by the bank’s representative and by the client, of two identical originals. The time of the execution, each party keeps the original signed by the other: therefore the client has the copy signed by the bank’s officer and the bank has the original signed by the client..
In this framework, in the context of the litigations brought by investors in order to obtain the recovery of the invested amount, without a valid master agreement – the same situation occurs in respect of claims brought by account holders in order to obtain the recovery of the amount allegedly received and unduly retained by the banks as, inter alia, compound interests and usury – it usually happens that the client does not file, in the judicial proceedings, the copy of the agreement object of the dispute, meanwhile the bank entries appearance filing the only available copy of the agreement: indeed, the bank have the copy of the agreement signed exclusively by the client, without the signature of the bank’s representative. Consequently the investors (or the account holders) often contest (challenge) that the only client’s signature is not sufficient to comply with the formal prerequisites of the agreement, i.e. these agreements need to be written in order to be valid (so called forma scritta ad substantiam). By such assumption it follows that, with respect to investment relationships, the related transactions are null and void and, with respect to bank accounts relationships, the lack of specific agreement on the economic arrangements applied by the bank grounds the voidness of the contractual relationship itself.
The decisions of the Supreme Court we are commenting are included in the regulatory framework of the Italian Banking Law (“I.B.L.”, “Testo Unico Bancario”): pursuant to art. 117 I.B.L. “the agreements are executed in a written form and a copy is delivered to the clients” “in the event of lack of written form the agreement is null and void”; and pursuant to art. 127 I.B.L “the voidness provided by such article benefits only the client and may be raised by Judge’s own motion”
The main issue, therefore, is whether the filing by the bank of the agreement’s copy signed exclusively by the client , is equivalent to the joint signing, thus sufficient to comply with the prerequisite of the written form, as stated by laws.
The previous interpretation of the Supreme Court (Supreme Court 22 March 2012, n. 4564) stated that the “single signature agreement ” can be considered valid provided that: (i) the agreement includes the wording “a copy of such agreement has been delivered to us” or “we are aware that a copy of such agreement is issued duly signed by your representatives”; or (ii) the filing in the civil proceedings of the agreement’s copy by the bank follows to the single client’s signature of the agreement; or (iii) the expression of interest by the bank to make use of the agreement itself, as a result of the multiple execution acts made by the same bank during the contractual relationship follows the single client’s signature of the agreement. According to the Supreme Court’s decision, the prerequisite of the written form could be considered complied with even in the event of lack of copy of the agreement signed by the bank’s representatives. According to such decision there was no need of joint and simultaneous signing.
The Supreme Court, with two recent “twin” decisions concerning the negotiations of securities (Cass. civ., 24 March 2016, n. 5919 e Cass. civ.27 April 2016, n. 8395) overrules its previous interpretation and states the validity of the agreement signed only by one party. In particular, according to the Supreme Court, the wording “a copy of such agreement has been delivered to us”, or “we are aware that a copy of such agreement is issued duly signed by the bank’s representatives”, does not constitute a confession (since it doesn’t concern the event of a loss, without negligence, by the bank of the document necessary to provide evidence, pursuant to articles 2724 n. 3 and 2725 of the Italian Civil Code) and thus it is not sufficient to give evidence of the compliance with the prerequisite of the written form. Moreover, the parties’ behaviour during the contractual relationship cannot replace the written agreement (consensus) required by the law. In light of the above, the filing before the Court, by the bank of the agreement without the signature of the bank’s representatives constitutes an event equal to the signature, thus causing the closing of the agreement. Such closing is effective just for the future (so called “efficacia ex nunc”). As a consequence, in the event of an investment master agreement, the purchase orders made before the effective closing of the agreement are null and void; and, in the event of a bank account agreement, the recapitalisation charges, the interests and maximum overdraft fees accrued on the period previous to the filing of the agreement by the bank are, as well, null and void, thus implying the right of the account holder to recover the amount paid.