The case, explained

Consumer-Guarantor Protection and Bank Forfeiture under Art. 1957 of the Civil Code

5 min read · Updated May 2026 · Editorial oversight: Avv. Federico Papa

The protection of guarantors acting as consumers reached a new turning point with legal developments in May 2024, consolidating the trend toward nullifying unfair clauses in banking contracts. According to press reports, the guarantor's right to be released from the obligation if the bank fails to act promptly against the primary debtor is increasingly gaining ground in courtrooms, overturning decades of banking practices. In this analysis, we will examine the scope of Article 1957 of the Civil Code and the impact of European regulations on the consumer status of the guarantor. By reconstructing a hypothetical twin case, we will see how an individual can defend themselves against enforcement actions when the bank waits too long before demanding payment, ignoring the statutory forfeiture deadlines.

In brief

This article analyzes case law on guarantees provided by consumers and bank forfeiture under Art. 1957 of the Civil Code. Drawing from a decision by the Court of Matera, it examines how a guarantor's consumer status renders clauses waiving statutory deadlines null and void. Through a hypothetical case study, the article outlines the technical steps required to raise the defense of guarantee termination, providing legal professionals with practical tools to manage forfeiture exceptions and protect weaker contracting parties.

  1. The facts

    According to reports by the news outlet SassiLive and statements from SOS Utenti, the case stems from an opposition to enforcement filed by a guarantor against a banking institution. The case, reviewed by the Court of Matera during the interim relief phase, involved a private individual who had guaranteed the debts of a commercial company.

    Following the company's default, the bank initiated recovery procedures against the guarantor well beyond the six-month deadline from the obligation's maturity, relying on a contractual clause that exempted the bank from complying with the terms set by Art. 1957 c.c. The judge suspended the enforceable title, ruling that the guarantor should be protected as a consumer.

  2. The laws at play

    The pivot of the case is Art. 1957 c.c., which states that a guarantor remains bound even after the primary obligation matures, provided the creditor files legal claims against the debtor within six months. If the creditor fails to act, the guarantee expires due to forfeiture.

    The Consumer Code (Legislative Decree 206/2005) then comes into play: Art. 3 defines a consumer as a natural person acting outside their professional or business activity, while Art. 33 classifies as unfair those clauses that create a significant imbalance to the consumer's detriment. Art. 36 punishes such clauses with protective nullity, rendering them ineffective.

  3. What case law says

    Case law has clarified that consumer status must be evaluated based on the activity of the guarantor, moving beyond the old concept of objective ancillarity. If the guarantor is a natural person who does not hold administrative roles or significant shareholdings in the debtor company, they qualify as a consumer.

    Consequently, the waiver clause for Art. 1957 c.c. found in bank standard forms is considered void, as it deprives the guarantor of a fundamental deadline without proven individual negotiation.

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  8. Lessons for professionals

    1. Nature of the debt: Do not stop at the commercial nature of the primary debt, but investigate the guarantor's subjective status and role.
    2. Timeliness of the defense: The forfeiture defense under Art. 1957 c.c. must be raised precisely in the first defensive pleading.
    3. Checking ABI templates: Many guarantees based on old association templates contain void clauses for violating the Consumer Code.
    4. Precautionary strategy: In the presence of violations of Art. 1957 c.c., the application for suspension of enforcement has a high probability of success.

References: Articolo 1957 Codice CivileArticolo 3 d.lgs. 206/2005 (Codice del Consumo)Articolo 33 d.lgs. 206/2005 (Codice del Consumo)Articolo 36 d.lgs. 206/2005 (Codice del Consumo)

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Avv. Federico Papa
Editorial oversight: Avv. Federico Papa·ICAM

Frequently asked questions

What happens if a guarantor signs a waiver of Art. 1957 c.c.?

If the guarantor was acting as a consumer, such a waiver is void as it is considered unfair. The bank remains obliged to act within 6 months, or the guarantee will expire.

Can a shareholder of a limited company (S.r.l.) be considered a consumer?

It depends. Case law generally denies consumer status to majority shareholders, directors, or managing partners, while it may grant it to inactive minority shareholders with no operational or managerial role.

What is the deadline to contest the bank's forfeiture?

The defense must be raised promptly in the first pleading after the bank serves a formal payment demand or enforcement act, specifically raising forfeiture during opposition to an injunction or notice of demand.

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