News Supreme Court rulings September 2020

1. No to revocation of divorce allowance if ex-spouse cannot find stable job

By Ordinance no. 18522/2020, the Supreme Court dismissed a petition to revoke a divorce maintenance allowance, declaring inadmissible an appeal brought by an ex-husband who claimed that his ex-wife had not made sufficient efforts to find employment that would allow her to support herself.

The Court ruled that, having proved the impossibility of finding stable employment, the divorce allowance, to which the former spouse remains obligated until the former partner achieves economic independence, cannot be withdrawn, provided it is proven that, despite the latter’s efforts and active search for work (in the present case, through the acceptance of fixed-term contracts and participation in competitions), there were objective reasons that prevented him or her from attaining stable employment such that he or she could independently procure what was necessary to support himself or herself.

2. Threatening the debtor’s family members is extortion

The Supreme Court, in ruling no. 24617/2020 clarified that the conduct of a person who uses violence or threatens the debtor’s relatives, who are strangers to the relationship, constitutes the crime of extortion under Article 649 of the Criminal Code and not the crime of arbitrary exercise of one’s own reasons under Art. 393 c.p.

The Court clarified that in order to integrate the arbitrary exercise of one’s own reasons, it is necessary that, while being able to resort to the court, the person arbitrarily reason from himself violence to property (Article 392 of the Criminal Code) or threatening violence to persons (Article 393 of the Criminal Code).

The court ruled that:“always integrates the extremes of extortion, the conduct consisting of threats or violence to the address of close relatives of the debtor, undoubtedly unrelated to the obligatory inter partes relationship allegedly acted upon by the agent, whose claim to retaliate to the detriment of third parties would not be judicially cultivable.”

3. Bank’s obligation to indemnify expert client if not adequately informed

The Supreme Court of Cassation, in Order No. 18153/2020 clarified that, on the subject of financial intermediation, the intermediary is not exempt from fulfilling the disclosure requirements under Article 21 of Legislative Decree No. 58 of 1998 even in the presence of a so-called “expert” investor, adept at financial transactions, including high-risk ones resulting from his past conduct.

Thus, the obligation remains on the intermediary to offer complete information about the nature, risk, yield and any other characteristics of the security in which the investor is interested.

The Court also made it clear that, in the case of failure to comply with the duty to inform, there is a presumption of the existence of a causal link with respect to the damage arising to the investor as a result of the uninformed choice made, without the investor’s prior or contemporaneous conduct supplementing the contrary evidence borne by the investor.