Validity of the framework investment agreement signed only by the client
As stated in the regulation of banking and financial contracts, provided for in Article 117 TUB and Article 23 TUIF, the framework investment agreement shall be drawn up in writing under penality of nullity. The legislation states a “nullity of protection”, that could be invoked only by the client, if considered convenient for himself. Otherwise, the client could take legal action to get declared the nullity of legal interests, charges and fees charged during the banking relationship; on the other hand, the investor could invoke the nullity of the framework agreement lacking in written form and get declared the nullity of all executive service orders that have been proved to be disadvantageous to him, with compensatory and restitutio effects.
The Supreme Court, with the judgement No 898/18, has spoken on the the validity of the framework investment agreement issue brought into court and that bears the only signing of the client, on which there has been raised a heated debate. The Chambers of the Supreme Court have established the validity of the contract bearing the only signing of the client.
The Supreme Court has started to analyse the ratio of Article 23 TUIF, that states under penality of nullity that “contracts related to service provision shall be drawn up in writing and a copy shall be delivered to the client…” establishing that is a type of nullity provided in his best interest. The purpose is, indeed, the “full indication for the client of the specific provided services, duration and arrangements for the contract renewal and its modification, the arrangements for single operations, periodicity, contents and documents to be provided during the accountability, because the investor needs to know and verify the respect of the implementing rules concerning the term of the contract, relating to the financial market”.
If this is the ratio, continues the Court, the form restriction shall be interpreted as the purpose of the legislation and not automatically as the general nullity regulation.
It shall be considered valid that framework investment agreement that bears the only signing of the client and that involves the subsequent delivery of the copy, given that it is no longer required the signing of the bank, that could be provided by conclusive conducts of the investor himself. This interpretation is in accordance with EU principles, in relation to Mifid1 and Mifid2 EU directives transposed in Italy by Legislative Decree No 129/2017.
The principle expressed by the Joined Chambers of the Supreme Court, even though it is related to a financial intermediation contract, shall apply to banking contracts too, considering the same regulation and ratio of the client protection provided for in Article 23 T.U.F. and Article 117 T.U.B. under which “contract shall be drawn up in writing and it shall be delivered a copy to the clients”.