Revocatory action and shareholder loans: the Court of Rome excludes restitution for reimbursements made more than one year after bankruptcy

SHAREHOLDER LOANS AND REVOCATORY ACTION: THE COURT OF ROME REJECTS THE CLAIM DUE TO LACK OF TEMPORAL AND OBJECTIVE CONDITIONS FOR INEFFECTIVENESS

With sentence n. 7178/2025, published on May 14, 2025, the Court of Rome – Business Section rejected a complex revocatory action proposed by a bankruptcy trustee pursuant to articles 2467 c.c., 2901 c.c. and 2033 c.c., in relation to the reimbursement of interest-free loans granted by shareholders in favor of a company subsequently declared bankrupt.

THE SUBJECT OF THE JUDGMENT: REIMBURSEMENT OF SHAREHOLDER LOANS AND CLAIM FOR RESTITUTION

The trustee had asked the judge to declare ineffective, and therefore revoke, the reimbursements of shareholder loans made more than one year before the declaration of bankruptcy, and to condemn the heirs and beneficiaries to the restitution of over 3 million euros, alleging the violation of art. 2467 c.c. (subordination) and, in the alternative, undue payment (indebito oggettivo).

The Court fully rejected the claim, deeming the temporal and objective requirements for the application of the bankruptcy revocatory action and the action for the recovery of undue payment to be non-existent.

THE LEGAL PRINCIPLES AFFIRMED IN THE DECISION

1. Art. 2467 c.c. configures a legal revocatory action subject to strict temporal conditions

According to the Court, the rule on the subordination of shareholder loans applies only if the reimbursements occurred in the year preceding the declaration of bankruptcy, as also clarified by the recent Cass. civ., Sez. I, n. 15196/2024. The contested reimbursements, however, had occurred beyond this period.

2. No revocatory effect outside the temporal limits ex lege

The special revocatory action ex art. 2467 c.c. is similar to the bankruptcy revocatory action referred to in art. 65 l.fall., entailing automatic ineffectiveness only within the temporal scope provided by the norm. In the absence of this prerequisite, no automatic restitution obligation is configured, nor is there a presumption of scientia decoctionis.

3. Inapplicability of the action for the recovery of undue payment ex art. 2033 c.c. in the presence of special discipline

The Court excluded the usability of the remedy of undue payment (indebito oggettivo) against reimbursements made by shareholders, emphasizing the structural incompatibility between art. 2033 and art. 2467 c.c., precisely because the latter provides for a restitution limited in time and subject to precise conditions. Admitting the generalized use of undue payment would frustrate the ratio of art. 2467 c.c.

4. Rigorous burden of proof for the eventus damni in the ordinary revocatory action

The Court also highlighted that, in the case of an ordinary revocatory action (art. 2901 c.c.), it is the receiver's burden to demonstrate:

• the existence of a concrete patrimonial prejudice;
• the anteriority of the credit with respect to the dispositive act;
• the causal link between the act and the damage to creditors.

In the present case, these prerequisites were not proven.

PRACTICAL RELEVANCE FOR CRISIS LAW AND DEFENSE IN COURT

This judgment is among the most relevant jurisprudential precedents for:

• clarifying the limits of enforceability of revocatory actions based on shareholder loans;
• affirming the importance of the timing of the operation with respect to the opening of bankruptcy proceedings;
• excluding automatic restitution and reiterating that the rules on subordination must be read in coordination with the Code of Business Crisis and Insolvency (CCII), currently in force.