Fixed rate loans: in case of intervened wear & tear; compensation required


Loan contract

Loan contract

Sometimes, after the stipulation of a loan contract, it may happen that the subsequent drop in interest rates leads to the fixed rate decided in the transaction phase to exceed the usury threshold. What happens in a similar case, commonly known as unexpected wear  The case in question is naturally limited to fixed rates, since those at variable rates have a mechanism which adapts the rates to the market at every fluctuation of this. 

Once again it is the Financial Banking Arbitrator who provides the answer to an extremely interesting question, a harbinger of far-reaching consequences. In the case of a scenario characterized by a constant and significant drop in interest rates on the market, in fact, the creditor is required to fully inform the debtor about the economic advantages associated with reducing the cost of funding. Precisely in this way the calming goals that are typical of any wear-control system that wants to be defined as such should come to fruition.

In practice, if there is a drop in the average rates recorded by the Banktally, in the event that those agreed upon when a loan contract was signed, they will be above the so-called rate of wear (that is, what has been indicated as this for the specific type of credit used) identified at the time, the established interests must be recalculated. An operation made necessary precisely to keep them constantly out of the rate of wear and to prevent payments made by the customer from becoming a real illicit.

A sentence, that of the Financial Banking Arbitrator, which also takes into due consideration what established by the Court of Cassation, according to which the principle of correctness and good faith must be exercised by the creditor having in mind also the consideration of the debtor’s interest.

Duration of the loan

Duration of the loan

A precise duty on the part of both parties, creditor and debtor, which must therefore be expressed by respecting a series of rights and duties that must be implemented regardless of the existence or otherwise of specific contractual obligations, or of what has been expressly established by law in force. A device contained in sentence 77/14 issued by the body in a case of usury occurred in a fixed-rate loan contract, for which compensation was ordered in favor of the debtor.

It should also be remembered as if due to the original wear and tear, as a result of the provisions of article 1815 of the Civil Code, the interests considered as usurious must be zeroed and are not consequently due for the entire duration of the loan, due to the useless usury, precisely because there are no specific references in our legal system, the sentences pronounced in recent times have opted for the sterilization of only the interests that go beyond the threshold rate, thus excluding their zeroing or replacement with the legal rate.

In practice, in the absence of a definitive jurisprudential orientation, we are still groping. For example, the Banktally does not identify a replacement rate, while the Court of Cassation provides for the application of the threshold rate. Now the pronouncement of the ABF seems to prefigure the opening of a new front, the one that can eventually lead the injured party to ask for and get compensation. All that remains is to wait for further developments.

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