{"id":9982,"date":"2026-11-09T10:40:09","date_gmt":"2026-11-09T10:40:09","guid":{"rendered":"https:\/\/mbg.legal\/?p=9982"},"modified":"2026-11-09T10:40:11","modified_gmt":"2026-11-09T10:40:11","slug":"default-interest-and-abusive-clauses-the-manifest-excessiveness-is-measured-not-presumed","status":"publish","type":"post","link":"https:\/\/mbg.legal\/en\/interessi-di-mora-e-clausole-abusive-la-manifesta-eccessivita-si-misura-non-si-presume\/","title":{"rendered":"Default interest and unfair terms: \u201cmanifest excessiveness\u201d is measured, not presumed"},"content":{"rendered":"<p class=\"wp-block-paragraph\"><em>The Venice Court of Appeal upholds the appeal of the bank assisted by our firm: a reading in light of Supreme Court decisions SU 19597\/2020 and Supreme Court decisions SU 9479\/2023.<\/em><\/p>\n\n\n\n<p class=\"wp-block-paragraph\">With ruling no. 1839\/2026 of October 13, 2026, the Venice Court of Appeal, upholding the Bank's appeal, reversed the first-instance ruling and rejected a consumer's challenge to enforcement. The decision deserves particular attention for the method used to assess the alleged unfairness of the default interest calculation clause.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><strong>The case<\/strong><\/p>\n\n\n\n<p class=\"wp-block-paragraph\">A mortgage loan signed in 2018 with a consumer provides a fixed rate for the first few years and a variable rate thereafter. The default clause is based on the 6-month Euribor plus 5 percentage points, with a safeguard clause within the anti-usury threshold: 5% upon signing, 8% upon the payment of the due date, notified in 2023.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The debtor opposes enforcement on the grounds of supervening usury and the unspecified interest rate. The Court rejects both claims, but automatically finds that the debtor is a consumer and, after requesting a cross-examination, declares the default clause unfair pursuant to Article 33, paragraph 2, letter f) of the Consumer Code. To determine the threshold of \u201cmanifestly excessive,\u201d it adds three items: the contractual nominal interest rate (APR), the average default rate recorded by the Bank of Italy for mortgages lasting more than five years (1.9 percentage points), and half of that same rate.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Upon the Bank's appeal, the Venice Court of Appeal reversed the decision and rejected the challenge. More important than the outcome is the method.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><strong>The framework of legitimacy<\/strong><\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><strong>Cass. ON 18 September 2020, n. 19597.<\/strong> The Joint Sections have clarified three points:<\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li>the anti-usury regulation also applies to default interest, with a threshold built on the TEGM increased by the average default interest, to which the coefficient and tolerance points provided by law are then applied;<\/li>\n\n\n\n<li>if the default is usurious, the agreed default interest is not due, but the legally agreed fees remain due (art. 1224, paragraph 1, of the Civil Code);<\/li>\n\n\n\n<li>In consumer contracts, articles 33, paragraph 2, letter f), and 36 of the Consumer Code also apply. The Joint Sections leave it up to the interested party to choose the remedy to be invoked, a principle later reaffirmed by the Supreme Court of Cassation in its ruling 145\/2023.<\/li>\n<\/ul>\n\n\n\n<p class=\"wp-block-paragraph\">The Joint Sections, which referred the grounds of unfairness to the Simple Section, did not, however, indicate how to measure \u201cmanifest excessiveness.\u201d In this area, lower court case law has been divided: a Milanese position presumes that a late payment exceeding the legal rate is unfair, if not negotiated; other courts use the average increase recorded by the Bank of Italy as a yardstick.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><strong>Cass. ON 6 April 2023, n. 9479.<\/strong> In implementing the Court of Justice's rulings of May 17, 2022, the Joint Sections of the Court of Justice have stated, in the interest of the law, the judge's duty to examine ex officio, in the context of cross-examination, the unfair nature of terms in consumer contracts. The principles are established for uncontested injunctions, but they express a duty that also applies to the enforcement phase. This is the line taken by the Court's ex officio ruling, which the Court did not question: the judgment was based on the criterion of measurement, not on the power to determine the clause.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><strong>Where the Venetian Court stands out<\/strong><\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><strong>1. The criterion must be justified.<\/strong> The Court criticizes the first judge's \u201capodictic\u201d adoption of the formula and notes its internal contradiction: first, it speaks of an increase \u201cincreased by half,\u201d then of exceeding \u201cdouble.\u201d The assessment pursuant to art. 33, letter f) <em>it is a relative presumption, but the threshold beyond which it is triggered must be justified<\/em>. The Court anchors it to the criteria of the Court of Justice: the comparison with the dispositive law and with the legal rate according to the ruling <em>Aziz<\/em>, the function of default and the circumstances at the time of conclusion of the contract (art. 4 dir. 93\/13).<\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><strong>2. The homogeneity of the data.<\/strong> The clearest point of the decision is that a fixed APR cannot be compared to a surcharge applied to a variable parameter. The Court therefore uses the TEGM of the correct category at each time:<\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li>At the time of signing, the APR for fixed-rate mortgages was 2.77%; with the 2.85 point increase, the applicable limit is 5.62%, above the 5% default rate;<\/li>\n\n\n\n<li>At the time of writing, the APR for variable-rate mortgages was 5.41%; with the same increase, a possible limit could be placed around 8.26%, above the 8% default rate.<\/li>\n<\/ul>\n\n\n\n<p class=\"wp-block-paragraph\">This is the logic of \u201csymmetry\u201d that the Joint Sections have developed for usury, transferred to the level of unfairness. However, the parameter is more stringent: the increase is increased by half, without the tolerance margins inherent in the anti-usury threshold. The result is a threshold for unfairness that is structurally lower than the usurious threshold. The reasoning is consistent with the principle that meeting the anti-usury threshold does not preclude unfairness, but remains anchored to market data rather than case-by-case assessments of fairness.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><strong>3. The double moment of verification.<\/strong> Article 4 of the Directive places the assessment at the time of conclusion of the contract. <em>The Court instead verifies the clause both at the time of stipulation and at the date of the formal notice<\/em>. For an indexed default, it is a prudential check, consistent with SU 19597\/2020, according to which, once the default has occurred, the interest actually applied counts.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><strong>4. Multiple parameters that converge.<\/strong> The Court also reviews the clause with respect to the rate of commercial transactions provided for by Legislative Decree 231\/2002: 8% in 2018 and 12% in 2023, in both cases above the agreed penalty.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><strong>5. What remains open.<\/strong> It should be noted that, having upheld the Bank's ground of manifest excessiveness, the Court dismissed the other grounds. Therefore, the further exceptions raised by the Bank remain open, including the alternative between anti-usury and consumer remedies, the weight of individual negotiations and notarial deeds (Article 34, paragraph 4, of the Consumer Code), and the consequences of nullity: fees, legal interest, or zero late payment, in accordance with the European guideline that excludes judicial reduction of unfair terms.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><strong>Operating instructions<\/strong><\/p>\n\n\n\n<p class=\"wp-block-paragraph\">From the experience of this trial, some suggestions for the legal departments of banks and other financial operators:<\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li><strong>In the process of being drafted.<\/strong> It is advisable to anchor the penalty to the consideration parameter, with one <em>spread<\/em> consistent with the average increase found for the category. Combine one <em>spread<\/em> fixed with an index different from that of the counterpart exposes to the observation of inhomogeneity.<\/li>\n\n\n\n<li><strong>The safeguard clause.<\/strong> It protects against wear and tear, but does not by itself solve the problem of unfairness.<\/li>\n\n\n\n<li><strong>In court.<\/strong> You must submit the TEGM for the correct category and period, along with the average increases reported in the quarterly decrees, and request that the judge clarify the criteria used. Compliance with the anti-usury threshold alone is not sufficient.<\/li>\n\n\n\n<li><strong>For transferees and other financial operators.<\/strong> Default clauses in consumer contracts must be included in the <em>due diligence<\/em>, because the official relief can emerge at any stage, from the warning to the execution.<\/li>\n<\/ul>\n\n\n\n<p class=\"wp-block-paragraph\">The Venetian judges' ruling signals that the game is increasingly being played on method: homogeneous data, declared criteria, verification anchored to the market.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Content by Attorney <a href=\"https:\/\/mbg.legal\/en\/lawyers\/claudio-bonora\/\" target=\"_blank\" rel=\"noopener\" title=\"\">Claudio Bonora<\/a> and of the lawyer.<a href=\"https:\/\/mbg.legal\/en\/lawyers\/marco-mancinelli\/\" target=\"_blank\" rel=\"noopener\" title=\"\"> Marco Mancinelli<\/a> <\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><\/p>","protected":false},"excerpt":{"rendered":"<p>La Corte d\u2019Appello di Venezia accoglie l\u2019appello della Banca assistita dal nostro Studio: una &#8230; <a title=\"Default interest and unfair terms: \u201cmanifest excessiveness\u201d is measured, not presumed\" class=\"read-more\" href=\"https:\/\/mbg.legal\/en\/interessi-di-mora-e-clausole-abusive-la-manifesta-eccessivita-si-misura-non-si-presume\/\" aria-label=\"Read more about Interessi di mora e clausole abusive: la \u201cmanifesta eccessivit\u00e0\u201d si misura, non si presume\">Read more<\/a><\/p>","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"slim_seo":{"title":"Default interest and unfair terms: Venice Court of Appeal 1839\/2026","description":"The Venice Court of Appeal upholds the Bank's appeal: the manifest excessiveness of the default interest is measured with homogeneous data, not presumed."},"_slim_seo_primary_term_category":7,"_slim_seo_primary_term_post_tag":0,"footnotes":""},"categories":[7],"tags":[],"class_list":["post-9982","post","type-post","status-publish","format-standard","hentry","category-diritto-bancario-finanziario-e-delle-assicurazioni","generate-columns","tablet-grid-50","mobile-grid-100","grid-parent","grid-33"],"acf":[],"_links":{"self":[{"href":"https:\/\/mbg.legal\/en\/wp-json\/wp\/v2\/posts\/9982","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mbg.legal\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mbg.legal\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mbg.legal\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/mbg.legal\/en\/wp-json\/wp\/v2\/comments?post=9982"}],"version-history":[{"count":1,"href":"https:\/\/mbg.legal\/en\/wp-json\/wp\/v2\/posts\/9982\/revisions"}],"predecessor-version":[{"id":9983,"href":"https:\/\/mbg.legal\/en\/wp-json\/wp\/v2\/posts\/9982\/revisions\/9983"}],"wp:attachment":[{"href":"https:\/\/mbg.legal\/en\/wp-json\/wp\/v2\/media?parent=9982"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mbg.legal\/en\/wp-json\/wp\/v2\/categories?post=9982"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mbg.legal\/en\/wp-json\/wp\/v2\/tags?post=9982"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}