In the opinion of the Unified Section (Sezioni Unite), if the clause on the interest rate was agreed on before the coming into force of Law N 108 of 1996, the fact that, that rate occur to be higher than the usury treshold during the effectiveness of the contract, does not make that clause null or void.

With the decision in discourse, the Supreme Court puts and end to an ongoing interpretative dispute by laying down a principle with regard to usury, which iso f great importance and has already been object of severe criticism. In fact, the Court argued that where the interest rate set by lender and borrower becomes higher than the usury treshold calculated pursuant to the provisions of Law N 108 of 1996, the clause trhough which the parties chosen the rate is not null and void. Moreover, the same principle was extended also to those contracts stipulated after the coming into force of the aforementioned law containing interest rates that in spite of being originally lower than the treshold in use at the the time of stipulation, have later become higher in the effectivity of the agreement.

In the complex argumentation of the decision at hand, the Supreme Court had the chance of clarifying that the lender’s claim relating to his right to receive the payment of the interests calculated on the agreed rate cannot be considered to be against the duty of performing in good faith only because that rate have become higher that the treshold afterwards.

Therefore, the Unified Section abandoned the doctrine of the wrongfulness of the lender’s claim about interests whose rate, originally conform to law, have subsequentlybecome higher than the treshold. The ground for the new position is to be found in the wording of the interpretative provision (norma di interpretazione autentica) about the interpretation of article 644 of the Italian Criminal Code and the second paragraph article 1815 as modified by Law N 108 of 1996 and contained in the first paragraph of article 1 of Law Decree N 349 of 2000.

It must be noticed that, in spite of affording a solution to an ongoing interpretative dispute, the decision at hand is not free from criticism. This is true, with particular reference to the section through which the Court denies that the claim for the interest, at a rate that is higher than the treshold, since it refers to “the exercise of a right among others attributed by the contract” and not to “particular ways of of specific exercise of the right that are to be considered wrongful in relation to the individual case” can be considered to be not against the duty of objective good faith. However, the new principle introduced by the Supreme Court, is now at the disposal of lower courts (at least until a new change).