Pubblicato 13 February 2023 | by Giuseppe Maria Marsico | in Civile
Leasing and non-fulfillment: from general theory to private autonomy
Abstract: In the leaseback, the termination of contract for the user’s breach, is analyzed with particular reference to the contractual clause wich includes the determination of the credit of the society of leasing in reason for the payment of all rental accrued and accruing until natural finished of contract, ransom included, deduct the financial consideration for the sale or re–lease of the good.
Summary: 1. Introduction: the birth of financial leasing between legal atypicality and jurisprudential typification – 2. Leasing and financial leasing: an initial definition of the elements of the negotiation phenomenon – 3. The peculiar and distinctive elements of the discipline: between negotiated connection and private autonomy – 4. Conclusion: negotiating autonomy and inducements
1. Introduction: the birth of financial leasing between legal atypicality and jurisprudential typification
Despite its financial nature, Italian case law has classified the financial leasing contract as an atypical contractual form, often qualifying it as a sale or rental agreement. In this respect, various indexes were formulated, such as the amount of the rental fees and the existence of a redemption agreement.
In August 2017, the Italian legislator sought to standardise the leasing contract under the law, attempting to define its contractual form and to regulate certain aspects, such as the lessee’s breach and possible consequences deriving from its termination.
The comparison between the approach taken by case law prior to the legislative reform and the new regulatory framework shows that the legislator did not transpose the long-established jurisprudential outcomes into the reform. Instead, through comparing the legal reform with the UNIDROIT Principles (The Ottawa Convention and the Model Law), it would appear that the new legal framework closely resembles the solutions adopted therein. Conversely, it is clear that the legal reform does not incorporate the rules adopted by the Draft Common Frame of Reference.
Financial leasing represents a modern financing technique for companies, which originated in the United States of America, where it found wide diffusion after World War II, first in the real estate sector and, later, in the movable sector of industrial machinery and other means of production. It made its entry into Italy, and, more generally, into the continental European market, in the 1960s thanks to a number of North American leasing companies which, in search of new markets in which to invest, began to carry out an important financial activity (1 ), They acted as intermediaries between producers of goods and user companies, combining their own interest in making capital investments with that of the former in allocating the goods produced on the market and that of the user companies in taking advantage of the benefits provided in the industrial production process by the use of these goods without the need to employ the financial means necessary to acquire ownership. As will be analysed below, the advantage of this type of contract is represented by the possibility for the entrepreneur to use machinery and means of production without the need to immobilise the sum of money necessary to purchase them. From this point of view, this financing technique arises as a contractual alternative – proper to private autonomy pursuant to Article 1321 of the Civil Code. – for a better and, sometimes, optimal allocation of resources (2 ), as an optimal paretian (3 ).
Leasing represents, in particular, an operation whereby a party (the lessor), against payment of a periodic fee, makes available to another party (the lessee) an asset, purchased or constructed on the choice and instructions of the latter party, who assumes all the risks (4 ) and has the right to become the owner at the end of the relationship through payment of a predetermined price. It should be emphasised that, despite the immediate and significant problems raised by the figure in our legal system, especially in terms of the difficulty of its legal classification, and despite the consequent widespread opinion of the need for legislative intervention to regulate the phenomenon, the lack of an organic regulation of the institution has long been recorded. Despite the fact that, over time, legislators have been paying increasing attention to certain aspects of the transaction, until the recent approval of the 2017 Annual Law on the Market and Competition (Law No. 124 of 4 August 2017), the transaction was generally counted among those legally atypical (even if ‘named’), although, at the same time, it was noted that, over the years, it had been the subject of a broad process of economic and legal typification (5).
Having said this in general, it should be noted that the provision in Article 17 of Law 183/1976 had already dictated a defining provision on the subject capable of identifying the main structural and peculiar elements of the negotiation transaction (6).
This contractual phenomenon has indeed been the subject of provisions of various ministries and authorities in the sector; however, for a long time, a significant part of the leasing discipline has been based on practice, in particular on the general terms and conditions of contract prepared by the lessor companies, as well as on the numerous case law interventions over the years in relation to the most relevant and controversial issues that have arisen in this respect (7).
It is in the light of the described process of economic and socio-jurisprudential typification of the “legally atypical” financial leasing contract that the real significance of the recent regulatory intervention set out in cc. 136-140 of Article 1 of Law No. 124/2017 (so-called Annual Market and Competition Law of 2017), to which the effect of having made leasing a typical transaction, tends to be attributed, must necessarily be scrutinised.
The purpose of the aforementioned novella was to regulate financial leasing in general terms through a set of provisions aimed at providing a discipline that, although not very broad and exhaustive, is in any case endowed with that minimum degree of organicity and definition of the peculiar elements from which a process of ‘legal’ typicality of a type of transaction, until a few years ago, with uncertain boundaries was inferred.
2. Leasing and financial leasing: an initial definition of the elements of the negotiation phenomenon
Pursuant to the provisions of Article 1, c. 136, of Law No. 124 of 4 August 2017 (Annual Law on the Market and Competition), finance lease means the contract whereby the bank or financial intermediary registered in the register referred to in Article 106 of the Consolidated Law referred to in Legislative Decree No. 385/1993, undertakes to purchase or have constructed an asset at the choice and according to the instructions of the user, who assumes all risks, including loss of value, and has it made available for a given period of time to the user. 385/1993, undertakes to purchase or have constructed an asset at the choice and according to the instructions of the user, who assumes all the risks, including those of loss, and has it made available for a given period of time for a given consideration which takes into account the purchase or construction price and the duration of the contract. At the expiry of the contract, the user has the right to acquire ownership of the asset at a predetermined price or, if the right is not exercised, the obligation to return it. The provision, which has an obvious definitional purpose, highlights, firstly, the effects of the contract in terms of rights and obligations: thus the grantor “undertakes to purchase or have constructed an asset at the choice and according to the instructions of the user, who assumes all the risks”; the user undertakes to pay the “consideration” owed by the user (by way of royalties, as provided for in para. 137), for the determination of which “account shall be taken of the purchase or construction price and the duration of the contract”, and acquires the right at the expiry of the contract to acquire ownership of the asset (otherwise it has the duty to return it); provision is then made for the allocation of the risks inherent in the asset (“also of perishing”) to the user. The definition is also articulated in descriptive terms of a factual situation that seems pertinent to the performance phase of the contract, such as the making available of the good.
In particular, with Article 1, paragraphs 136-140, of Law No. 124 of 4 August 2017, the legislature introduced a series of provisions on leasing (8), drawing a discipline that is characterised by a general applicative scope and reflects, therefore, a different approach with respect to other, previous regulatory interventions, which were, on the contrary, characterised in a sectorial sense or aimed at regulating specific hypotheses. It should be noted, moreover, that the regulation set forth in Law No. 124/2017 concerns only certain profiles of the transaction, while other aspects remain without a specific reference within the positive discipline brought about by the novella. A central relevance within the regulatory plexus introduced in 2017 is the regulation of the termination of the contract following the non-performance of the user for non-payment of rents, to which cc. 137-139 of art. 1 of the aforementioned law are dedicated. In what follows, the aim will be to analyse funditus a specific aspect of such regulation, namely that pertaining to the prerequisites for the termination of the contractual bond, analysing the issues posed by the provision of the threshold of the “seriousness” of the breach established by paragraph 137, also with reference to the allocation of the risk in the event of termination for breach.
In analysing the profile in question, it is indispensable to refer to the recent pronouncements of the Joint Sections of January 2021 (9), as well as to the complex jurisprudential framework, which, by intervening in an articulated text, have taken a position on the rules applicable to the termination of the lease due to non-performance by the lessee in the event of the latter’s subsequent declaration of bankruptcy, addressing with ample reasoning, the applicative problems of intertemporal law concerning the discipline of contractual relationships in progress at the time of the entry into force of the 2017 regulations, which, as is well known, do not contain transitional law provisions aimed at identifying the rules operating for such relationships therefore necessarily limit themselves to recalling the principles enunciated by the Court, which stated that “Law no. 124/2017 (art. 1, paragraphs 136-140) does not have retroactive effects and is, therefore, applicable to financial leasing contracts in which the conditions for termination due to the non-performance of the user (provided for in paragraph 137) have not yet occurred at the time of its entry into force; Consequently, for contracts terminated earlier and in respect of which the user’s bankruptcy has occurred only after the contractual termination, the distinction between leases of enjoyment and leases of transfer (10) remains valid, the rules under Art. 1526 of the Civil Code and not that dictated by Article 72-quater of the Finance Law, with respect to which the conditions for recourse to the analogy legis cannot be recognised, nor is it otherwise permitted to reach – by way of interpretation – a retroactive application of Law No. 124 of 2017”; a jurisprudential orientation (11) has also affirmed that “According to the discipline dictated by Article 1526 of the Civil Code, in the event of bankruptcy of the user, the grantor who aspires to become a competing creditor has the burden of formulating a complete application for the lodging of claims for the liabilities, pursuant to Article 93 of the bankruptcy law, in which, invoking the application of any penalty clause stipulated in his favour for the purposes of compensation for damages, he must offer the delegated court the possibility of assessing whether that penalty is fair or manifestly excessive, in this regard having the burden of indicating the exact amount obtained from the different allocation of the leased asset, or, failing that, of attaching to his application a reliable estimate of the market value of the asset at the time of filing it.
Having said this, it is necessary to classify the leasing contract as a transferable lease and as a lease for use, highlighting the differences between them. In fact, the distinction between leases of enjoyment and leases of translation concerns the concrete cause of the contract: in the leasing of enjoyment it is expected that the res will exhaust its economic utility within a certain period of time, which usually coincides with the duration of the relationship; in translative leasing, on the other hand, the intention is to achieve a pre-eminent and coessential translative effect, given that the asset is destined to retain, at the end of the lease term, a residual value particularly appreciable for the lessee, inasmuch as it is significantly higher than the redemption price, so that such redemption does not constitute a marginal and accessory eventuality, but falls within the concrete economic-individual function of the parties assigned to the contract.
In other words, the partition depends on the function that, in concrete terms, pursuant to Art. 1322 of the Civil Code, within the scope of private autonomy, pursuant to Article 1322 of the Civil Code. (12 ), the parties have implied in the contract, which emerges from the rent and the redemption price of the asset: if the lease consideration is comparable to the economic value of the enjoyment of the asset, the redemption price will be based on the actual value of the asset at the time of redemption (enjoyment leasing, since the contract is for the purpose of a normal financial lease) (13 ); if the lease rent is higher than the rental value, the redemption price will be lower than the value of the asset at the time of redemption itself (translative leasing, because from the outset the contract is aimed at a sale and the rent includes both the lease and the payment of part of the price). In translative leasing there is then a temporal non-coincidence between the period of consummation – technical and economic – of the asset and the duration of the contract: the original will of the parties is aimed at realising, by means of the instrument of translative leasing, the transfer of ownership at the end of the relationship, the purchase itself constituting a necessary de facto situation for the lessee, having regard to the disproportion between the considerable residual value of the asset and the modest redemption price. Consequently, there is a clear instrumentality of the grant in usufruct with respect to the final purpose represented by the sale, with an eminently transactional function.
3. The peculiar and distinctive elements of the discipline: between negotiated connection and private autonomy
Before outlining in greater detail the issues relating to the negotiating link and the threshold of the seriousness of the breach due to non-payment of rents by the user, it is appropriate to resume, albeit in summary, the main aspects of the regulations on leasing introduced by Law No. 124/2017. The regulation opens with the provision of c. 136 of Article 1, which describes leasing as the contract between the lessor – a bank or financial intermediary registered in the register pursuant to Art. 106 Tub – and the lessee, on the basis of which the former “undertakes to purchase or have constructed an asset at the choice and according to the instructions of the lessee, who assumes all the risks, including those of loss, and has it made available for a given period of time for a given consideration that takes into account the purchase or construction price and the duration of the contract” (14 ). With reference to the time of expiry of the contract, the provision provides the user with the alternative between the ‘right to acquire ownership of the asset at a predetermined price or, in the event of failure to exercise the right, the obligation to return it’.
As has been accurately observed in doctrine, there is also provided for a third outcome of the contractual relationship upon its expiry, namely the possibility of the “conclusion of a new leasing contract, for the same asset as the previous one which has expired or for another asset”. The provision of a defining character contained in para. 136 is followed by the discipline relating to the non-performance of the lessee for non-payment of the lease instalments, and in this respect, as will be seen in more detail below, para. 137 sets forth the notion of “serious non-performance of the lessee”, It should be noted that para. 138(1)(a), (b), (c) and (d), and (e), (f), (g), (h), (i) and (ii), (i) and (ii), (i) and (ii), (ii) and (iii), (ii) and (iii), (i) and (iv), (iv), (vi) and (v), (vii). It should be noted that para. 138 below sets forth the consequences of the termination of the contract for non-performance by the lessee ‘pursuant to para. 137’.
First of all, the provision in question recognises the grantor’s right to the return of the asset; it is then established that the grantor must “pay to the user the proceeds from the sale or other disposal of the asset, carried out at market value”, with the provision that from this amount the grantor may deduct the sum corresponding to the expired and unpaid rentals, the rentals falling due “only in principal”, and the price for exercising the purchase option; in addition, the grantor may retain from the proceeds of the sale or of the different location ‘the expenses advanced for the recovery of the asset, the valuation and its preservation for the time necessary for the sale’. Para. (138) specifies that in the event that the proceeds from the placement of the asset do not cover the entire amount due to the grantor, the grantor shall retain a corresponding amount of its claim against the lessee. Paragraph 139 of Article 1 of Law No. 124/2017 then sets forth the procedures that the grantor must follow in valuing the asset following the termination of the contract pursuant to paragraph 138. Lastly, in the last part of the discipline dedicated to leasing, Paragraph 140 saves the application of Article 72-quater l. bankruptcy. (15 ), with reference to real estate to be used as a main residence, of Article 1, paragraphs 76-81, of Law No. 208/2015. Among the most important aspects of the 2017 regulations, there is a tendency to unanimity among the interpreters of a strand of doctrine that the unitary nature of the legal regime introduced by the legislator would be worth marking an irreversible overcoming of the well-known jurisprudential dichotomy between leasing for use and leasing for transfer and correlative differentiation in terms of the regulation (16 ) of the consequences of termination (17 ) for non-performance by the user. This distinction, in the light of the principles affirmed by the Joint Sections in January 2021, nevertheless retains relevance, as mentioned above, for contracts in respect of which the conditions for termination had already been met (18 ) on the date on which the new rules came into force (29 August 2017), and therefore not considered to be included in the temporal scope of application of the same novelty.
The observations made above lead to adhere to that majority hermeneutic direction which has reconstructed the structural profiles of the leasing figure in different terms, envisaging the recurrence of a negotiating scheme characterised by the presence of two distinct contracts, one of sale-purchase between supplier and lessor, the other of leasing in the strict sense, concluded by the latter with the lessee, contracts linked between them by a connection brought back by the majority of the advocates of the thesis in question to a hypothesis of voluntary functional connection, i.e. by finding in the same the recurrence of that particular mechanism through which – as described by an appreciable jurisprudence of legitimacy – the parties, in the exercise of their private autonomy, pursue a complex economic-functional result (19 ), by means not of a single transaction, but of a coordinated plurality of contracts, each of which maintains its own legal individuality and causal autonomy (20 ), although aimed at a unitary regulation of interests.
In other words, the link does not create a new and autonomous “typical” contract, but allows the contracting parties to regulate their interests in such a way that the events of the one transaction may in various ways affect, reciprocally or unilaterally, the other, determining a functional interconnection, also from the point of view of purpose, between the positions involved in the transaction. In this respect, it is worthwhile to begin by dwelling on a point which has already been the object of preliminary attention and which will be of decisive importance for the subsequent specification of certain aspects concerning the phenomenon of contractual connection itself. Indeed, we wish to emphasise how the reference, just made, to the unitary economic result pursued by means of the link should not be considered as contradicting the existence of two contracts endowed with an autonomous cause, since it certainly does not represent the result towards which the interests of all the parties converge, but rather the final result by reason of which the connection between the negotiations was consciously created by the parties and, therefore, that result which, by virtue of the relationship of interdependence/subordination/pre-ordination to be found between the connected contracts, justifies the influence of the events of the individual negotiations, the intertwining of the different, albeit non-converging, interests involved. It is believed that a connection of this kind occurs in the leasing scheme, it being evident, in the light, inter alia, of the most recent regulatory data, not only how the sale represents the presupposition of the subsequent leasing, but also how the construction of a connection between the two transactions is clear from a rapid reading of the relevant forms, where, for example, in the recitals of both contracts it is often made explicit that the reason for the purchase by the lessor is the subsequent grant of the lease to the lessee, and in the delivery contract it is provided that the delivery is to be made by the seller directly to the lessee; or, sometimes, with a view to the optimal allocation of resources and, therefore, of costs between grantor and user, it is possible, pursuant to Art. 1322 of the Civil Code, determine, albeit within certain public-law limits, the risks and liabilities concerning the agreement concerning the asset.
Such a peculiar arrangement of interests must not, in any event, draw an unbalanced apparatus of rights and obligations, capable – in practice – of determining a so-called efficient non-performance, i.e. a pathological case in which the debtor is incentivised – on the economic plane – not to perform, rather than to behave ex bona fide, for the performance of the obligation. The recurrence of such a relationship between the two contracts, of supply and leasing, is well highlighted in the definition of the leasing contract contained in the recent regulations set forth in cc. 136 ff. of Article 1 of Law no. 124/2017, in which the conclusion of the latter contract gives rise to an obligation “to purchase or to have constructed” the asset on the part of the grantor, linking the aforesaid obligation to the subsequent provision of the same asset in favour of the user.
This profile is also well evidenced in the recent regulation of financial leasing set forth in the Annual Law for the Market and Competition, in which c. 136 of Art. 1 states, verbatim, that the lessor “makes the asset available” to the lessee. In the financial leasing transaction, therefore, a purchase and sale contract characterised by its own cause (of exchange), and a leasing contract in the strict sense, also endowed with an autonomous cause (21 ), are by the parties’ negotiating autonomy strictly and finalistically coordinated, through the construction of an overall regulation involving the intertwining of positions, rights, interests and events, for the purpose of achieving a final result, which, by virtue of the created relationship of functional preordination of the sale with respect to the making available of the asset in favour of the user, is deemed to be the financing (or cause of financing).
4. Conclusion: negotiating autonomy and inducements
Therefore, once again, negotiating autonomy pursuant to Article 1322 of the Civil Code. – within the limits bounded by mandatory rules, public order and morality – can design a particular negotiating structure of interests, with a view to the optimal allocation of economic and financial resources (so-called Paretian optimum) .
Thanks to the negotiation instrument, which originated in market practice and has now become typical, it is possible to use means of production without resorting to the immobilisation of wealth.
The penalty clause, in this perspective, is understood as an ex ante predetermination of the ‘cost’ of a possible breach of contract, subject to the provision for greater damages.
It makes it possible to allocate – by way of redistributive-compensation and, in part, deterrence – the risk borne by the user, as a source of inducement, or means of indirect coercion, towards the user, so that he fulfils the obligation laid down in the contract and behaves ex bona fide . Behavioural economics, in this perspective, accepts many of the assumptions of traditional economic thought, namely that the effects of individual choices, the expression of private autonomy, are the result of acting in a given economic environment.
Behavioural economists go a step further, however, by arguing that human action is shaped not only by the economic constraints present in the case, but is also influenced by people’s endogenous preferences, knowledge, skills, and various psychological and physical constraints. Incentives or indirect means of coercion are important and guide human behaviour; they often represent more than just the prospect of monetary gain (22).
The production and typification of legal rules is often based on predictions – according to id quod plerumque accidit – about the extent to which people will respond to legal rules and institutional constraints.
(1) M. Bussani, Locazione finanziaria, in Riv. dir. civ., 1986, II, 585; F. Giorgianni, Riflessioni sul contratto di leasing e fallimento dell’utilizzatore”, in Riv. it. leasing, 1986, 15; A. Munari, Il leasing come contratto atipico di durata, in Foro pad., 1986, I, 319; F. Chiomenti, Il leasing, il Tribunale di Milano e Donna Prassede, in Riv. dir. comm., 1980, 282; Id., Il leasing finanziario e le scuole giuridiche ortopediche, ivi, 1988, II, 94; A. Luminoso, Natura del leasing e oggetto dello scambio, in Riv. it. leasing, 1987, 525; G. La Torre, La natura giuridica del leasing secondo la Corte costituzionale, in Giur. it., 1988, 727; N. Lipari, Leasing e vendita con patto di riservato dominio alla luce dei recenti orientamenti giurisprudenziali, in A. Munari (a cura di), Sviluppi e nuove prospettive della disciplina del leasing e del factoring in Italia, Milano, Giuffrè, 1988, 67 ss.; F. Denozza, Aspetti negoziali del leasing, in Aa.Vv., Il leasing verso gli anni ’90: fra realtà negoziale e prospettive di cambiamento, Brescia, s.e., 1988, 17 ff.; G. Alpa, Qualification of leasing and factoring contracts and its effects in bankruptcy proceedings, in Nuova giur. civ., 1988, II, 370; F.S. Violante, La “locazione finanziaria” e la individuazione della disciplina, Napoli, Esi, 1988; V. Zeno-Zencovich, Il “leasing” e la causa di finanziamento: una confutazione grafica, in Foro it., 1988, I, 2329; M. Bussani, P. Cendon, I contratti nuovi. Casi e materiali di dottrina e di giurisprudenza. Leasing, factoring, franchising, Milano, Giuffrè, 1989, 7 ss.; R. Monticelli, Leasing, in Banca, borsa ecc., 1989, II, 92; G.M. Corbo, Autonomia privata e causa di finanziamento, Milano, Giuffrè, 1990; R. Pardolesi, Leasing finanziario: si ricomincia da due, in Foro it., 1990, I, 474; D. Velo (a cura di), Il leasing: manuale sugli aspetti giuridici, economici e fiscali, Roma, Buffetti, 1991; M. Gorgoni, Sulla qualificazione giuridica del leasing, in Riv. not., 1993, 468; F. Vassallo Paleologo, I contratti di locazione finanziaria, Padova, Cedam, 1994; D. Purcaro, La locazione finanziaria. Leasing, Padua, Cedam, 1998; N. Visalli, La problematica del leasing finanziario come tipo contrattuale, in Riv. dir. civ., 2000, 643; G. Lener, La qualificazione del leasing fra contratto plurilaterale ed “operazione giuridica”, in Studium iuris, 2001, 1152; M. Imbrenda, Leasing e lease back, in P. Perlingieri (ed.), Trattato di diritto civile del Consiglio nazionale del notariato, Napoli, Esi, 2008; V. Viti, Il collegamento negoziale e la tutela dell’utilizzatore nel leasing finanziario, in Giur. it., 2016, 36.
(2) G.M. Corbo, Autonomia privata e causa di finanziamento, Milano, Giuffrè, 1990; R. Pardolesi, Leasing finanziario: si ricomincia da due, in Foro it., 1990, I, 474; D. Velo (a cura di), Il leasing: manuale sugli aspetti giuridici, economici e fiscali, Roma, Buffetti, 1991; R. Cooter et al., Il mercato delle regole. Economic analysis of civil law, Bologna, il Mulino, 2006.
(3) A. C. Pigou, The economics of welfare, London, Macmillan, 1932. For an in-depth analysis of the “phenomena” characterising this new conceptual strand, see U. Mattei, Tutela inibitoria e tutela risarcitoria, Milan, Giuffrè, 1987, 22 ff. These also include the Lausanne School, in which Vilfredo Pareto elaborated the famous criterion (called Pareto efficiency) according to which efficiency would be achieved when it would not be possible to improve the welfare of some without worsening that of others. For an incisive analysis of Pareto’s economic and sociological contributions, see J. Schumpeter, Vilfredo Pareto, in The Quarterly Journal of Economics, 1949, 147; P. Trimarchi, La responsabilità civile: atti illeciti, rischio, danno, Milano, Giuffrè, 2021; Id., Rischio e responsabilità oggettiva, Milano, Giuffrè, 1961; G. Calabresi, Il futuro dell’analisi economica del diritto, in Sociologia dir., 1990, 1-2, 47; A. Nicita, V. Scoppa, Economia dei contratti, Rome, Carocci, 2005; A. Nicita, M. Vatiero, The contract and the market: towards a broader notion of transaction?, in Studi note econ., 2007, 1, 7; L.A. Franzoni, D. Marchesi, Economia e politica economica del diritto, Bologna, il Mulino, 2006; E. Posner, Economic analysis of contract law after three decades: Success or failure?, in The Yale Law Journal, 2003, 4, 829; N. Mercuro, S. Medema, Economics and the law. From Posner to postmodernism and beyond, Princeton, Princeton University Press, 2006; N. Irti, L’ordine giuridico del mercato, Roma-Bari, Laterza, 2009.
(4) This is the expression used in the recent regulation of financial leasing set out in the Annual Market and Competition Law (Law no. 124 of 4 August 2017), in which c. 136 of Art. 1 states that the granting bank or financial intermediary “undertakes to purchase or have built an asset at the choice and according to the instructions of the user, who assumes all the risks, including those of loss, and has it made available for a given time for a given consideration”. The expression in question tends well to highlight how in the financial leasing transaction the thing is delivered to the user directly by the supplier.
(5) On the socio-jurisprudential typification of leasing see, among others, A. Clarizia, Contratti di finanziamento e poteri del giudice, in Riv. it. leasing, 1991, 278; N. Lipari, Dieci anni di giurisprudenza della Cassazione sul leasing, ivi, 1993, 545; A. Luminoso, I contratti tipici e attipici. Luminoso, I contratti tipici e atipici. Contratti di alienazione, di godimento, di credito, in G. Iudica, P. Zatti (eds.), Trattato di diritto civile, Milano, Giuffrè, 1995, 363 ff. More generally, on the phenomenon and the notion of “social typification” and “jurisprudential typification”, see E. Betti, Teoria generale del negozio giuridico, Turin, Utet, 1943; G.B. Ferri, Causa e tipo nella teoria del negozio giuridico, Milan, Giuffrè, 1966; R. Sacco, Autonomia contrattuale e tipi, in Riv. trim. dir. proc. Civ., 1966, 785.
(6) Article 17(2) of Law No. 183/1976 states, verbatim, that “leasing transactions are understood to mean the leasing of movable and immovable property, purchased or constructed by the lessor, at the lessee’s choice and indication, who assumes all the risks, and with the latter’s right to become the owner of the leased property at the end of the lease term, upon payment of a predetermined price”. Moreover, from a regulatory point of view, mention must be made of law no. 259 of 14 July 1993, which made the Unidroit Convention on international leasing, entered into in Ottawa on 28 May 1988, enforceable in Italy; although the scope of application of this legislation is limited to cases where the lessor and the lessee belong to different legal systems, it has been pointed out that it can also be applied to domestic contractual relationships, at least in interpretation; cf, in this sense, A. Colombo, Operazioni economiche e collegamento negoziale, Padua, Cedam, 1999, 333 ff. M. Imbrenda, op. cit., 28. In case law, see Cass. 2 November 1998, no. 10926, in Foro it., 1998, I, 3081; Trib. Napoli 29 March 2001, in Dir. e giur, 2002, 401, in which it goes even further, affirming the applicability by analogy of the principles contained in the Unidroit Convention to domestic relations; a more cautious position has recently been taken by Court of Cassation no. 17597 of 4 August 2014, in which it is stated that the legislation in question, although not applicable where the leasing relationship lacks elements of extraneousness with respect to the national system, is nevertheless “useful – all the more so in the absence of a positive domestic discipline – in the interpretative reconstruction of the institution”. It is noted, moreover, with reference to the concrete cause of the leasing contract, that pursuant to Article 2744 of the Civil Code “An agreement by which it is agreed that, in the absence of payment of the claim within the fixed term, ownership of the mortgaged or pledged thing shall pass to the creditor shall be null and void. The covenant is null and void even if subsequent to the constitution of the mortgage or pledge”. The rationale of the provision is, moreover, debated: traditional theories identify it as the need to protect the debtor party from possible abuse and coercion by the creditor; others emphasise how the provision constitutes a bulwark to protect the principle of par condicio creditorum. Still others identify its rationale in the contrast to self-defence mechanisms, given the exclusive state jurisdiction in executive matters. Doctrine and jurisprudence have extended the nullity sanctioned by Article 2744 of the Civil Code also to the so-called “autonomous” covenant of commission: by means of this clause – usually inserted in a sale-purchase contract – the parties (already bound by a previous obligatory relationship) provide that the transfer of the right of ownership of a specific asset free of “burdens” (therefore, not pledged or encumbered by a mortgage) to the buyer-creditor is subject to the occurrence of the non-performance of the seller-debtor. In such a case, the buyer-creditor will not be required to pay the price, since the transfer of ownership will serve to “compensate” the non-performance of the obligation of the previous relationship. In the event of proper performance of the previous obligation, the seller-debtor will instead be entitled to redeem the transferred asset. Moreover, the jurisprudence of legitimacy agrees that the prohibition of Art. 2744 of the Civil Code extends to any agreement, contract or plurality of connected transactions which, although formally lawful, are used to pursue, in practice, the result prohibited by the provision in question (e.g., a power of attorney to sell conferred on a creditor who, in the event of non-performance by the principal debtor, acquires the asset at a low price).
(7) A non-secondary role in the social typification of financial leasing was played by numerous chambers of commerce, among which undoubtedly that of Milan, which, through an important activity of recognition and ascertainment of the uses in the field, offered a notion and a first discipline of the negotiation scheme in question; cf. Luminoso, I contratti tipici e atipici, cit.; G. De Nova, Nuovi contratti, Torino, Utet, 1994, 197 ss.; N. Visalli, op. cit., 645. In general, on the activity carried out by chambers of commerce in the preparation and promotion of “model contracts”, see the contribution of E. Battelli, I contratti-tipo. Modelli negoziali per la regolazione del mercato: natura, effetti e limiti, Napoli, Jovene, 2017, 247 ff.
(8) In general on the new discipline under analysis, see V. Confortini, Primacy of credit, Naples, Jovene, 2020, 249 ss.; S. Mauceri, Termination for non-performance and the leasing contract, in Contratto e impr., 2020, 1517; C. Boiti, Leasing and the protection of the user, Naples, Esi, 2020; F. Bartolini, Complex contractual structures. Problemi della trilateralità nei contratti di finanziamento, Napoli, Esi, 2019, spec. 89 ss.; S. Scuderi, Il leasing finanziario alla luce della L. n. 124/2017, in Contratti, 2019, 335; P. De Martinis, L’atipicità dei “nuovi” leasing: obbligo al subentro, patto di repiacquisto ed altre “garanzie”, Torino, Giappichelli, 2018, spec. 31 ff; G. Di Rosa, La disciplina della locazione finanziaria nella prima legge annuale per il mercato e la concorrenza, in Contratti, 2018, 215; S. Foti, Leasing finanziario e tutela dell’utilizzatore: profili evolutivi nella transizione dalla prassi al tipo, ibid.
(9) Court of Cassation, S.U., 28 January 2021, no. 2061; also, with substantially corresponding reasoning, Court of Cassation, S.U., 29 January 2021, nos. 2142 and 2143. On the rulings of the Supreme Court, see F. Macario, Tipizzazione e qualificazione del leasing al vaglio delle Sezioni Unite, in Contratti, 2021, 253.
(10) To be kept distinct from financial leasing is the so-called operating leasing, a contract whereby a lessor, a producer of goods or a company specialised in leasing categories of goods (cf, in this respect, Trib. Milan 15 May 1978, in G. De Nova, Il contratto di leasing, Milan, Giuffrè, 1985, 67 ff.), confers the use of a generally standardised asset, at the same time obliging itself to provide a series of collateral services (assistance, maintenance, instructions for use) to another party (lessee-user), who will be obliged to pay him a rent proportionate to the use of the asset and including remuneration for the collateral services. In such a contract, since the rent is not in any way related to the economic life of the asset, it is the lessor who bears the risk of the latter’s obsolescence, while, lacking the provision of the final purchase option, the lessee at the expiry date may either renew the agreement on pre-established terms or return the asset. On the basis of the characteristics described above, it is widely held that an operating lease is referable from a causal point of view to an ordinary lease, with the consequent applicability to it of the code discipline of the simple lease; see, in this regard, C. Mirabelli, Il leasing e il diritto italiano, in Banca, borsa etc., 1974, I, 231; A. Luminoso, I contratti tipici e atipici, cit.; G. De Nova, Profili giuridici del leasing, in R. Ruozi, A. Carretta (eds.), Manuale del leasing, Milan, Giuffrè, 1984, 335; A. Clarizia, I contratti per il finanziamento dell’impresa, in V. Buonocore (ed.), Trattato di diritto commerciale, Torino, Giappichelli, 2002, 358; N. Visalli, op. cit. In case law, see Trib. Florence 19 July 1980, in Foro Pad., 1981, I, 349; 23 August 1986, in Riv. it. Leasing, 1987, 505.
(11) See Cass., S.U., no. 2143/2021, cited above. The judgment is part of the jurisprudential trend that has re-proposed the distinction between leases of enjoyment and leases of transfer, highlighting, as anticipated, the practical-applicative implications of no little moment. In particular, in the case in question, the Court of Ascoli Piceno, by decree of 6 March 2018, rejected the opposition of a leasing company, under extraordinary administration, to the statement of liabilities of the bankrupt Omissis s.r.l., to which the opposing company’s claims had not been admitted for the amount relating to the outstanding instalments of certain leasing contracts entered into with the same company in bonis and terminated on 10 April 2014, prior to the bankruptcy (declared on 11 April 2014), following the grantor’s intention to avail itself of the express termination clause as a result of the lessor’s default. In support of the decision, the court observed that: a) since the leasing contracts, having a transactional nature (due to the value of the asset subject to the contract being much higher than the amount agreed for the exercise of the option right), were terminated prior to the declaration of bankruptcy of the user company, Article 1526 of the Civil Code had to be applied and not Royal Decree No. 267/1942, Art. 72-quater of Royal Decree No. 267/1942; b) therefore, the request for payment of the unpaid lease instalments could not be accepted, since the lessor was entitled, in addition to the restitution of the asset, only to fair compensation, which, however, had not been the subject of any request, nor could it be considered to be included in the request made; c) moreover, the clause (Art. 21 of the leasing contracts) which, in regulating the effects of termination, allowed the lessor to retain the rentals collected and the payment of those outstanding, was to be considered “inequitable within the meaning of Art. 1526 Civil Code, paragraph 2, and should, therefore, be equitably reduced”. A. Musto, L. Piccolo, F. Tresca, Il leasing immobiliare abitativo: prime osservazioni, Studio del Consiglio Nazionale del Notariato no. 38-2016/C, approved on 22 January 2016, in www.notariato.it, 12; G. Visconti, La nuova tutela dei diritti patrimoniali degli acquirenti di immobili da costruzione: Legislative Decree No. 122 of 2005 that implemented Delegated Law No. 210 of 2004, 23 March 2006, in diritto.it; S. Bonfatti, From juvenile housing leasing to the reform of the leasing discipline, in Riv. dir. banc, 2, 2016, in dirittobancario.it, 3. R. Clarizia, I contratti di finanziamento e la crisi delle “categorie”, contribution for the Scritti in memoria di Perchinunno: “And the final blow to the interpretative confusion is given by Law No 124 of 4 August 2017, which in Article 1, paragraphs 136 et seq. regulates leasing in general. In fact, this law instead of clarifying what are the structural elements of the transaction, its cause, the distinguishing features from other contractual cases, has contributed to further confusion. In my opinion, it has largely disappointed the expectations of everyone, operators, judges and scholars: they expected a clear statement on the cause, a regulation of the lease back, and instead, nothing at all. From the subjective point of view, the user is not qualified – and therefore the equivocal nature of his possible nature of private individual/consumer remains – it offers an excessively analytical discipline of the consequences of the termination of the contract for non-performance by the user, and in the last paragraph 140 recalls – uselessly and without unveiled justification – the application of a series of rules concerning leasing and in force in specific contexts”.
(12) A. Clarizia, La Cassazione, la locazione finanziaria e i contratti di finanziamento, in Corriere giur., 1986, 84; P. Schlesinger, Leasing: la risoluzione non investe i canoni già pagati, ibidem, 858; L. Barbiera, Un secondo rifiuto della Cassazione di intervenire a correggere assetti contrattuali imbilibrati nel leasing finanziario, in Giur. it., 1987, I, 243; A. Clarizia, La locazione finanziaria e l’art. 1526 c.c., ibidem, 249.
(13) For a qualification of financial leasing as an enterprise contract, see in doctrine, ex plurimis, F. Guerrera, Il procedimento di formazione dell’operazione di leasing finanziario, in Rass. dir. civ., 1987, 861; A. Di Amato, Impresa e nuovi contratti, Napoli, Esi, 1998, 2a ed., 258; A. Clarizia, I contratti per il finanziamento dell’impresa, cit. In jurisprudence, for a framing of the leasing in terms of a “contract for the company” in view of the nature of the parties to whom the transaction is addressed, see Court of Cassation 9 April 1982, no. 2198, in Rep. Foro it., 1982, entry Company, no. 11; see also Court of Cassation 6 May 1986, no. 3023, in Giur. it., 1987, I, 243. More generally, it must be emphasised how debated is the very possibility of relating the expression “business contracts” to a “category” in the proper sense or to a mere descriptive summary of a list of contractual figures. On this issue, which has by no means been put to rest today also, or rather especially, following the recent regulatory interventions of European derivation, see the various positions expressed, among others, by. C. Angelici, La contrattazione d’impresa, in P. Ferro-Luzzi et al., L’impresa, Milano, Giuffrè, 1985, 185 ff.; A. Dalmartello, Contratti d’impresa, in Enc. giur., vol. IX; V. Buonocore, I contratti d’impresa, in V. Buonocore, A. Luminoso, Contratti d’impresa, vol. I, Milan, Giuffrè, 1993, 3 ff.; Id., Contratti del consumatore e contratti d’impresa, in Riv. dir. civ., 1995, I, 1.
(14) On the notion of “economic transaction” and its relationship with the contract, see, among others, A. D’Angelo, Contratto e operazione economica, Turin, Giappichelli, 1992, 9 ff. Gabrielli, Il contratto e le sue classificzioni, in Riv. dir. civ., 1997, I, 705; Id., Il contratto e l’operazione economica, ivi, 2003, I, 93; A.M. Azzaro, I contratti non negoziati, Napoli, Esi, 2000, 334 ss. They use the term “transaction” with reference to financial leasing A. Clarizia, I contratti per il finanziamento dell’impresa, cit., 70; A. Munari, voce Leasing, in Enc. dir. Agg., vol. VI, 656; A. Colombo, op. cit., 323;
(15) C. Scognamiglio, Unity of the transaction, good faith and relevance in hermeneutics of the parties’ behaviour, in Banca, borsa etc., 1998, II, 133; G. Lener, op. cit.; D. Purcaro, I problemi di struttura del leasing, in Riv. it. leasing, 1987, 543; Id., La locazione finanziaria, cit., 24 ss.; D. Chindemi, Trilaterality of the leasing contract and reduction of the contract to equity without recourse to the application of article 1526 of the Civil Code, in Resp. civ., 1994, 182; Id., Invalidity of the risk reversal clause in the event of non-delivery of the asset in the leasing contract, in Nuova giur. civ., 2000, I, 325; M. Imbrenda, op. cit., 46 ss. M. Imbrenda, op. cit., I, 325; M. Imbrenda, op. cit., 46 ff. With specific regard to the so-called translative consumer leasing (for which see, infra, chap. 4), M. Gorgoni, Credito al consumo e “leasing” traslativo al consumo, in Riv. trim. dir. proc. civ., 1992, 1148 ff.
(16) In the Business Crisis and Insolvency Code (Legislative Decree No 14, 12 January 2019, c.c.i.), in relation to the consequences of the opening of judicial liquidation on the leasing contract, see Art. 177. As to the composition with creditors and the discipline of pending contracts, see Article 169-bis (spec. c 5) bankruptcy law, and Article 97 (spec. c 12), I.C.C., as replaced by Article 15(2) of Legislative Decree No. 147 of 26 October 2020. It is worth mentioning, with regard to corporate crises, the recent intervention set forth in Decree-Law No. 118 of 24 August 2021 (“Urgent measures concerning corporate crises and corporate reorganisation, as well as further urgent measures in the field of justice” (in Official Gazette No. 202 of 24 August 2021); without being able to summarise its contents here, it should be noted that the decree, by amending Art. 389 of Legislative Decree No. 14/2019, provided for the postponement to 16 May 2022 of the entry into force of the aforementioned Legislative Decree No. 14/2019 (except for the provisions of cc. 1-bis and 2 of Art. 389), and to 31 December 2023 of Title II of the same Legislative Decree No. 14/2019 (see Art. 1 of Legislative Decree No. 118/2021).
(17) The question of the admissibility within the financial leasing transaction of a direct protection of the user against the supplier of the asset in the event of default by the latter, the relevance of which can be well understood in the light of the recurring contractual clauses aimed at transferring to the user any risk related to the asset subject of the transaction and, therefore, to prevent that party from opposing to the grantor the supplier’s non-performance in order to suspend the payment of the rentals or terminate the leasing contract, is indeed connected to the pre-ordained definition of the structural profiles of the leasing contract. The adherence to the reconstructive option aimed at envisaging in the contractual scheme at issue a unitary tripartite contract, as will be discussed in greater detail below, would, in fact, undoubtedly facilitate the resolution of the problems of protection of the lessee, making it possible to overcome the obstacle represented by the latter’s position of third party with respect to the sale and purchase and opening the way to the direct admissibility of contractual actions by the same against the seller. The prevalence, however, of the shared reconstruction of the transaction in terms of a negotiated connection with the consequent affirmation of the user’s position of third party with respect to the contract of sale, made the solution to the problem clearly less linear, leading at first several authors and the dominant jurisprudence to approach the figure of the lessee to that of the principal without representation in order to allow the same to exercise directly, by virtue of the application of the rule of Art. 1705, para. 2, Civil Code, the rights of credit arising from the sale in the hands of the grantor-agent towards the third party supplier, provided that the agent’s rights under the contract concluded were not prejudiced (with the consequent possibility for the lessee to bring actions for performance and damages and the exclusion of the right to bring an action for termination of the sale, see Court of Cassation no. 10926/1998, cited above; 21 September 2004, no. 19657, in Banca, borsa etc., no. 611; 5.2.1, 2005, II; 611; 5 September 2005, no. 17767, in Foro it., 2005, 1278; 27 July 2006, no. 17145, in Obbligazioni e contratti, 2006, 773. In doctrine, among those in favour of invoking the rule as per article 1705, section 2, Civil Code, N. Visalli, op. cit., 684; L. Barbieri, Vizi della cosa concessa in leasing e diritti dell’utilizzatore, in Giur. it., 2000, II, 1137). The aforementioned prospect, which is now to be considered outdated in the light of the recent arrest by Cass., S.U., 5 October 2015, no. 19785, in Giur. it, 2016, 33, with note by V. Viti, Il collegamento negoziale e la tutela dell’utilizzatore nel leasing finanziario, annotated by P.A. Messina, Vizi del bene e tutela dell’utilizzatore nel contratto di leasing, ibid., 49; M. Fermeglia, Qualification of financial leasing and protection of the user: the point (and something more) of the Sezioni unite, in Nuova giur. civ, 2016, 262; G. Di Rosa, The protection of the user in the financial leasing contract, in Contratti, 2016, 233; V. Viti, The identification of actions that can be brought by the leasing user against the defaulting vendor and the (underestimated) relevance of the negotiation link, in Corriere giur., 2016, 789;
(19) M. Maugeri, Vendor default and user protection in financial leasing, in Banca, borsa etc., 2017, II, 35. A recent line of jurisprudence has not failed to raise shareable critical remarks both with regard to the limits that the reference to Art. 1705 of the Civil Code, in the light of the restrictive interpretation given by the most recent case law on the subject of mandates, would have entailed with regard to the range of actions that may be brought, as well as with reference to the difficulties of assimilating the different situations recurring in the case of financial leasing and mandate without representation; This has led to doctrinaire positions inclined to base the admissibility by the lessee of direct actions against the vendor on the same element of the contractual connection, in some cases giving prominence to an affirmed unity of cause, which, characterising the entire case, would allow all the subjects involved to be considered as parties to the overall operation (in this last sense, see. E. Fochesato, Causa unitaria nell’ambito dell’operazione di leasing finanziario e tutela dell’utilizzatore: una svolta della Cassazione? in Contratti, 2007, 379).
(20) See S. Bonfatti, Il leasing è legge, in Riv. dir. bancario, 2017, 365, who, with respect to the provision of paragraph 138, observes that it “is dictated, literally, for the case of termination of the contract “pursuant to paragraph 137″; but it must be understood as applicable to all cases of termination of the lease for non-performance by the lessee, even different ones, if its configurability is admitted”; according to the author, the discipline would therefore be applicable also to the case of non-performance, provided that it integrates the threshold of “not minor importance” pursuant to Article 1455 of the Civil Code, which would be substantiated, for example, by the failure to preserve or to perform the obligations under Article 1455 of the Civil Code, the discipline would therefore also be applicable to the case of non-performance, provided that it meets the threshold of “not minor” under Art. 1455 of the Civil Code, consisting, for example, in the failure to preserve or maintain the asset. The same line of thought is shared by E. Lucchini Guastalla, Il contratto di leasing finanziario alla luce della legge n. 124/2017, in Nuova giur. civ., 2019, II, 184.
(21) On the subject of regulatory indications, see, in addition to the definition of leasing in the recent 2017 Annual Law on the Market and Competition, which expressly refers to the assumption by the user of “all risks, including the risk of loss” of the asset, the previous similar definition contained in c. 2 of Art. 17 of Law 183/1976. In doctrine and jurisprudence there have been questions as to the possibility of finding any invalidity profiles of such a regulation. The position prevalently taken in both instances has been, with particular reference to the clauses exempting the lessor from liability for defects of the goods, in favour of their validity, it being held that they stand as a natural element of the leasing contract, directly deriving from the financial nature of the transaction and from the lessor’s capacity as financial intermediary, which requires that such party sees its role as limited to the financial moment of the event, remaining on the contrary entirely indifferent to the performance of the material relationship with the good. In this regard, see Court of Cassation, 17 May 1991, no. 5571, in Giust. civ., 1991, I, 2973; 11 July 1995, no. 7595, in Vita not., 1995, 1372; 2 August 1995, no. 8464, in Foro it., 1996, I, 164; 30 June 1998, no. 6412, ibid., 1998, I, 3082. In doctrine, among others, G. De Nova, Il contratto di leasing, cit., 29, who admits the validity of the aforesaid clauses if the lessee is allowed to protect his own interests against the supplier; A. Clarizia, I contratti per il finanziamento dell’impresa, cit., 288. As to the clauses reversing the risk of non-delivery of the goods, on the other hand, over the years there has been a change in the position of jurisprudence as to their validity. At first, in fact, the majority opinion, in view of the financing function of leasing, as well as of the possibility for the lessee to take action against the supplier, was in favour of the validity of the above clauses (see, among others, Court of Cassation no. 6862 of 21 June 1993, in Foro it., 1993, I, 2144; no. 8464/1995, cited above), supported by a relevant part of the doctrine inclined to consider dispositive the provision of article 1463 of the Civil Code. Cf. G. De Nova, Il contratto di leasing, cit., 39; G.A. Rescio, La traslazione del rischio contrattuale nel leasing, Milan, Giuffrè, 1989, 223; F. Delfini, Autonomia privata e rischio contrattuale, Milan, Giuffrè, 1999, 92 ss. With respect to this direction a revirement took place at the end of the 1990’s, when the jurisprudence of legitimacy settled on the contrary on a prevailing statute of invalidity of the clauses in question for contrast with Art. 1463 of the Civil Code, relying, inter alia, on the principle of good faith in the execution of the contract by the grantor and on the grantor’s obligation to verify the delivery before proceeding to the payment of the price (but deeming such obligation to be discharged by the simple verification by the grantor of the regularity of the delivery report): see Court of Cassation no. 10926/1998, cited above; 6 June 2002, no. 8222, in Danno e resp, 2002, 94; 29 April 2004, no. 8218, in Studium iuris, 2004, 1283; no. 19657/2004, cited above; 29 September 2007, no. 20592, in Nuova giur. civ., 2008, I, 356, The authoritative doctrine referred to is G. De Nova, La Cassazione e il leasing: atto secondo, note to Cass. 13 December 1989, no. 5573, in Foro It, 1990, part I, col. 462 in which the author states that if one assumes the ratio between option price and residual value of the asset as a criterion for distinguishing between leases of enjoyment and of transfer, it will be seen that all leasing contracts will have a shorter duration with respect to the economic life of the asset, not only the new type of leasing outlined by the Supreme Court in ’89. Starting from these premises, the author considers preferable a generalised application of Art. 1526 of the Civil Code to all financial leasing operations.
(22) F. V. Paleologo, I contratti di locazione finanziaria, op. cit., 189 ss., is also of the same opinion, according to whom even in leasing the applicability of art. 1458 of the Civil Code does not exclude the need to apply art. 1526 of the Civil Code in order to rebalance the contractual synallagma. The author, in fact, notes that the price of the residual value of the asset, although obsolete, is still higher than the price envisaged for the option, this being so, “the performance having as its object the royalties is not merely remuneratory of the enjoyment of the asset, and cannot be considered exhausted at the time of termination of the contract for non-performance by the user”, having to opt, also according to this approach, for a general application of Article 1526 of the Civil Code. See also in this sense, ex plurimis, Trib. Monza, 19 September 2002, in Riv. Fall, 2003, 6, 6593 in which the court of merit criticises the typological distinction of leasing, considering that taking the ratio between the final redemption price and the residual value of the asset subject to the contract as the discriminating factor of the intention pursued by the parties, is a discreditable operation for three reasons first, because the said criterion would require “an assessment of the final value of the asset from an ex ante perspective (i.e. the final value of the asset as representable at the beginning of the relationship)”, and the court finds that this is not always possible; second, that the amount of the instalments envisaged by the parties is based on essentially fiscal issues, rather than revealing a different intention of the parties as to the qualification of the contract; thirdly, the Lombardy court observes that in all leasing contracts, the intention pursued by the leasing company is always to see the price paid for the purchase of the asset covered and the capital invested remunerated, there being no need to distinguish the case from the lessor’s point of view.
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