With the recent judgment of the SSUU. n. 898/2018, a definitive point has been put on the validity of the framework contract which has been subscribed only by the investor.

The question submitted to the United Sections of the Italian Court of Cassation essentially concerned the scope of art. 23 TUF (Legislative Decree 58/1998) and, in particular, if the requirement of the written form of the investment agreement needs, in addition to the subscription of the investor, also the substantial subscription of the intermediary. 

The provision in question, in fact, prescribes that the framework contract must be drawn up in writing and that a copy must be given to the customer, under penalty of nullity; however, this nullity according to the third paragraph, can be relied on only by the client.

The Supreme Court, according to the consistent case law concerning the matter (except for two contrary rulings Nos. 4564/2012 and 17740/2015), states that the requirement of the written form of art. 23 TUF is complied with whenever the contract is drawn up in writing and a copy is delivered to the customer, even though the subscription of the financial intermediary does not occur.

According to the Judges, in fact, the purpose of the provision of nullity, is to ensure the full disclosure, in favour of the customer, of the specific services provided, the duration and methods of renewal of the contract and its modification, as well as the ways in which the will carry out the operations, the periodicity, contents and documentation to be provided during the reporting.

And if, as is well emphasized in the ruling, the functional intent of this provision of nullity is to ensure the full knowledge and the possibility to verify during the relationship the respect of the methods of execution and the rules concerning the validity of the contract, it is clear that it can be submitted to the Court only when those intents are not achieved.