Restituzione di somme addebitate dalla Banca ante 10 anni
Tempo di lettura: 3 minuti

E’ possibile richiedere la restituzione delle somme addebitate illegittimamente dalla banca anche ante 10 anni dalla data interruttiva della prescrizione?

In questo breve articolo intendiamo sfatare un luogo comune, fin troppo diffuso, circa l’indiscriminata applicazione dei termini prescrizionali sanciti dall’art. 2394 del codice civile ai rapporti di conto corrente bancario “affidati”.

Nell’azione di ripetizione dell’indebito, che un cliente effettua nei confronti dell’Istituto di Credito, è possibile richiedere le somme versate alla banca anche andando indietro nel tempo oltre i 10 anni e quindi sino all’inizio del rapporto (data di apertura del conto).

L’articolo 2394 del codice civile sancisce che un diritto si prescrive nel momento in cui il titolare non lo esercita per un determinato periodo di tempo e, nel caso del credito, tale limite di tempo è di dieci anni.

L’art. 1194 del c.c. sancisce che il debitore, per imputare il pagamento (versamento) al capitale, invece che alle spese e agli interessi, ha bisogno del consenso del creditore. Ne consegue che senza tale consenso i versamenti che il creditore effettua vanno a “coprire” PRIMA le spese e gli interessi e poi il capitale.

A questo punto interviene la Sentenza di Cassazione a Sezioni Unite 22418/2010 introducendo il concetto di “natura delle rimesse” individuando di conseguenza due differenti tipologie di rimesse: “rimesse solutorie” e “rimesse ripristinatorie“.

Per le rimesse solutorie non è possibile richiedere la “ripetizione” ante 10 anni, mentre per le rimesse a carattere ripristinatorio sì, in quanto non risultano prescritte.

Per una precisa analisi del rapporto di conto corrente, è necessario comprendere e verificare la natura delle rimesse alla luce della Sentenza di Cassazioni a Sezioni Unite 22418/2010.


RICHIEDI LA NOSTRA ANALISI SUI TUOI RAPPORTI BANCARI


Con la sentenza di Cassazione 4518/2014 è stato chiarito che i versamenti eseguiti su conto corrente, in corso di rapporto, hanno normalmente funzione ripristinatoria della provvista e non determinano uno spostamento patrimoniale dal solvens all’accipiens. Quindi sarà la banca a dover provare che le rimesse (i versamenti) del cliente hanno avuto carattere solutorio e non ripristinatorio, perché essa stessa ha interesse a far valere la prescrizione. Ciò è un enorme vantaggio per il correntista.

Ai fini della corretta attuazione dell’onere probatorio, ai sensi dell’ art. 2697 c.c., ricade dunque sulla Banca il dovere di individuare le rimesse di natura solutoria e, dunque, la relativa annotazione, dalla quale sorge il diritto di ripetizione dell’eventuale indebito.

Perché le rimesse ripristinatorie non si prescrivono?

La sentenza di Cassazione SS.UU. 2 dicembre 2010, n. 24418 effettua una netta separazione distinguendo le due forme di credito, ovvero il fido e la parte eccedente il fido, “extra fido”. Solo la seconda forma di credito, avendo le caratteristiche della immediata liquidità ed esigibilità è assoggettata alla disciplina dell’art. 1194 del c.c., di conseguenza i versamenti a “coprire” l’extrafido sono “pagamenti” e quindi soggetti a prescrizione. Nel momento in cui i versamenti avvengono “entro” il fido essi non hanno la natura di “pagamenti” ma atti “ripristinatori” della disponibilità, perché nell’ambito di un rapporto bancario le operazioni di prelievo e versamento non danno luogo ad autonomi rapporti di credito o debito reciproci tra il cliente e la banca, ma rappresentano l’esecuzione di un unico negozio da cui deriva il credito ed il debito della banca verso il cliente.

Quindi, in corso di svolgimento del rapporto non è possibile configurare un credito preesistente (liquido ed esigibile) della banca a fronte del quale il pagamento del cliente vada imputato in conto interessi.

Si può sinteticamente rispondere al quesito iniziale – è possibile richiedere la restituzione delle somme addebitate illegittimamente dalla banca anche ante 10– in maniera affermativa: si, è possibile chiedere la restituzione delle somme illegittimamente addebitate dalla banca (interessi passivi, commissioni e spese) sin dalla data di apertura del conto corrente affidato.


STUDIO LEGALE E COMMERCIALE ESPERTO IN CONTENZIOSO BANCARIO

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