The diachronic analysis of the discipline relating to the unilateral modification of banking contracts highlights how the current regulatory framework is the result of a complex and articulated path aimed at resolving the interpretative and applicative doubts that have arisen over time. Even if the nature of the ius variandi, as a real potestative right of banks to unilaterally modify the legal sphere of others, has remained impassive to the numerous amendments made to art. 118 TUB aimed at increasing customer protection, the need for intermediaries to guarantee the stability and efficiency of their actions has had to be harmonized with the need to ensure a generally high level of formalism and correct behavior during the relationship with customers. In fact, the stage of economic and information asymmetry in which the latter find themselves has led to the ex lege recognition of a right that decisively conditions the effects of the ex uno latere variation operated by the bank, being able in any case to release themselves from the constraint without costs. The ius variandi, therefore, is a fundamental tool for rebalancing the contractual synallagma altered by multiple cyclical variations, most recently also due to a deteriorated economic context following an economic context deteriorated by the ongoing wars and the accentuated inflationary dynamics. Given this reference context, this work, after having related the evolutionary process that has affected Title VI of the consolidated law over time with the analysis of the subjective and objective application areas as well as the resolved problems and the critical issues that still remain, aims to define the boundaries of the ius variandi in the cases of substantial variation or cessation of a reference index agreed in a banking contract or an indexed rate financing contract, which are regulated in the “new” art. 118-bis consolidated law, as introduced by Legislative Decree no. 207 of 7 December 2023, in which the bank must communicate to the counterparty a replacement index identified exogenously with respect to the circle of intermediaries and the justified reason is identified in a regulatory supervening arising from an external objective event that entails an automatic contractual modification.
L’art. 118-bis t.u.b. tra esercizio dello ius variandi bancario e criticità applicative
Gennaro Rotondo
;Giovanni Fornabaio
2025
Abstract
The diachronic analysis of the discipline relating to the unilateral modification of banking contracts highlights how the current regulatory framework is the result of a complex and articulated path aimed at resolving the interpretative and applicative doubts that have arisen over time. Even if the nature of the ius variandi, as a real potestative right of banks to unilaterally modify the legal sphere of others, has remained impassive to the numerous amendments made to art. 118 TUB aimed at increasing customer protection, the need for intermediaries to guarantee the stability and efficiency of their actions has had to be harmonized with the need to ensure a generally high level of formalism and correct behavior during the relationship with customers. In fact, the stage of economic and information asymmetry in which the latter find themselves has led to the ex lege recognition of a right that decisively conditions the effects of the ex uno latere variation operated by the bank, being able in any case to release themselves from the constraint without costs. The ius variandi, therefore, is a fundamental tool for rebalancing the contractual synallagma altered by multiple cyclical variations, most recently also due to a deteriorated economic context following an economic context deteriorated by the ongoing wars and the accentuated inflationary dynamics. Given this reference context, this work, after having related the evolutionary process that has affected Title VI of the consolidated law over time with the analysis of the subjective and objective application areas as well as the resolved problems and the critical issues that still remain, aims to define the boundaries of the ius variandi in the cases of substantial variation or cessation of a reference index agreed in a banking contract or an indexed rate financing contract, which are regulated in the “new” art. 118-bis consolidated law, as introduced by Legislative Decree no. 207 of 7 December 2023, in which the bank must communicate to the counterparty a replacement index identified exogenously with respect to the circle of intermediaries and the justified reason is identified in a regulatory supervening arising from an external objective event that entails an automatic contractual modification.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
