The Brescia Court of Appeal, in its judgment dated 26 March 2019 on the controversial issue of the relationship between usury and default, retraces and endorses the arguments made by the Third Civil Division of the Court of Cassation in ruling No. 27442 of 30 October 2018 (judge-rapporteur: Rossetti). In that ruling, the Court of Cassation affirmed, in the light of a review of the four traditional criteria of legal interpretation – literal, systematic, finalistic and historical interpretation – that, Article 2 of Law No. 108 of 1996 prohibits the agreement of interest exceeding the maximum amount stated therein, and specified that this rule applies both to interest promised as a return on capital or charged on the deferment of a payment (interest payments: art. 1282 of the Italian Civil Code), and to interest due as a result of a default (default interest: art. 1224 of the Italian Civil Code). The Court of Cassation also established, citing ruling No. 29/02 of the Constitutional Court and several rulings of the Court of Cassation, the principle of law whereby “an agreement is null and void if it provides for contractual default interest that exceeds, at the signing date, the threshold rate established in Article 2 of Law No. 108 of 7 March 1996 for the type of contract the agreed default interest refers to.” The Court added that, in the absence of any rule of law, the usury nature of default interest must be ascertained on the basis of the rate set out in Article 2 of Law 108/96 (threshold rate calculated with reference to the type of contract) and not based on a non-existent rate, sometimes defined as “default-threshold” rate, obtained by arbitrarily increasing the threshold rate by a few percentage points.

The Court of Cassation concluded by adding, as an obiter dictum, that the provision whereby interest is not due under Article 1815, paragraph two, of the Italian Civil Code would not apply to default interest, since the Article refers specifically and only to ordinary interest payments, whereas, in the case of usurious default interest, the legal interest rate would apply.

This last passage of the judgement is in contrast with the previous ruling of the Joint Civil Divisions No. 24675 of 19 October 2017, which explicitly linked the concept of usurious interest only to the definition given in Article 644 of the Italian Criminal Code (which does not distinguish between ordinary interest payments and default interest).