Important ruling by the Financial Banking Arbitrator (ABF) which accepted the appeal of a company, assisted by Avv. Lifang Dong and Avv. Alfredo Iadanza Lanzaro.
The particularity of the case brought to the attention of the ABF Milan Board concerned the application also to companies of the favorable discipline provided for consumers by art. 125-quinquies of the Consolidated Law on Banking.
In this case, although art. 125-quinquies of the Consolidated Law on Banking could not be applied, the company obtained in any case the declaration of the termination of the loan agreement signed for the purchase of a car, and the return of the first two installments paid, thus taking advantage of the effects of the favorable legislation provided for consumers by the aforementioned article.
The members of the Board have, in fact, decided to accept the appeal "by virtue of the contractual link between the loan agreement whose termination is requested and the related supply contract".
The motivation clearly explained in the provision clarified that "If, in fact, a supply or sale contract is connected to a loan with a finalized purpose to finance it, where the seller is totally in default, having omitted the delivery of the goods sold, and has instead received directly the amount borrowed from the bank as payment of the consideration, the termination of the sale also involves the termination of the related loan agreement, while the bank will have to address its request for repayment not to the borrower but directly and exclusively to the seller " .
At the basis of the important decision of the ABF, therefore, there was the non-fulfillment of the seller of the car who, despite having received the sum financed for the purchase of the asset from the bank, had not then delivered to the company the good bought and sold, resulting from this "that the negotiation link between the two contracts and their interdependence produce a unitary regulation of the events relating to the permanence of the contractual bond, for which they" simul stabunt, simul cadent "".
It followed that the loan agreement was terminated pursuant to articles 1453 of the Italian Civil Code. et seq. for non-fulfillment by the seller / supplier, regardless of the applicant's status as a consumer, with the further effect of restitution by the banking institution of the installments already paid (Board of Milan, decision no. 447/2022).
Avv. Lifang Dong and Avv. Alfredo Iadanza Lanzaro
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