In the calculation of the APR and, consequently, in the attempt to define the relationship existing between the APR and the usury threshold, it is also necessary to include the insurance costs related to the loan. This was stated by the recent Cass. n. 8806/2017, as an interpretation of the provisions of art. 644 of the Italian Criminal Code, according to which all costs related to the loan must be entered for the calculation of the annual percentage rate.
Article. 644 of the Italian Criminal Code states that “for the determination of the usurious interest rate we take into account the commissions, remuneration for any reason and expenses, excluding those for taxes and fees, linked to the provision of credit”: just enough to introduce into the system of counting the APR also commissions and remuneration at any cost and expense, including insurance and warranty .
Returning to the sentence under examination, the Cassation ruled on the appeal made for “violation and incorrect application of the rules of law, contradictory and manifest illogicality of the motivation of the art. 644 cod. pen. as amended by law n. 108/1996, erroneous application of the decrees of the Minister of the Treasury and the instructions of the Bank of Italy for the detection of the effective global rate pursuant to usury ”.
In particular, the ground of appeal was based on the fact that it would have been noted that, in calculating the overall economic cost relevant for the purpose of assessing the usability of the inter partes loan, the insurance costs borne by the debtor in connection with the loan should also be counted. ‘obtaining credit (in this case, it was an’ insurance premium for the policy stipulated to guarantee the credit ‘, with the consequence that the loan granted by the finance company to the customer at the time exceeded the maximum threshold allowed by law, precisely because of the presence of insurance charges.
Well, on this appeal the Cassation has expressed a favorable opinion of acceptance.
Bank wear and Cassation
The judges of the Supreme Court recalled that “the decision taken by the Court of Appeal of Naples, which with regard to the loan in question was excluded from the list of items, cannot be considered compliant with the regulation concerning the durability of credit stores. relevant economic policies in that regard represented by insurance costs “.
The Court of Cassation then stated that it was also acquired “the finding that the counting of this item undoubtedly involves exceeding the usurious threshold of the loan granted by the finance company to the gentlemen (omissions) as a store belonging to the category« advances, commercial discounts, personal loans and other loans made by non-bank intermediaries – over 5,000.00 C.
To support its assessment, the Court recalled that the legislation prohibiting usurious relations – which we have already mentioned with reference to art. 644 cod. pen. – considers all the items of the economic load that are applied in the context of credit relationships to be relevant. According to what is in effect the provision of paragraph 5 of art. 644, the judges recall, “for the determination of the interest rate one takes into account the commissions, remuneration for any reason and expenses, excluding those for taxes and fees, linked to the provision of credit”.
In this sense, the different perspective of the repression of the usurious phenomenon would not be correct, according to which some relevant items could be excluded, naturally resulting in the result of shifting – to the operational level of the practice – the substance of the economic weight of the credit score from the items included towards excluded items . “Also to be considered safe” – continues the sentence – “is that said” all-inclusive “character for the relevance of the economic items – in the exclusive limit of their connection to the credit operation – is valid not otherwise for the criminal and civil consideration of usury phenomenon ”.
Bank wear and insurance costs
Once these more general assessments have been introduced, the Court converges its assessments on the specific issue of insurance costs. In this regard, the judges underline how the formula of the instructions according to which “according to the law the calculation of the rate must take into account the commissions, remuneration for any reason and expenses, excluding those for taxes and fees, linked to the provision of credit. In particular, the costs for insurance or guarantees, imposed by the creditor, intended to assure the creditor full or partial repayment of the credit, are included, should certainly not be read in the way the judges of the Neapolitan Court did, who has considered possible to exclude these items from the calculation of the APR because they are optional.
In the criticism of the decisions taken in the previous grade, the Cassation emphasizes how the Neapolitan Court “did not carry out any argumentative itinerary in support, almost the passage was to be estimated automatically: where, on the other hand, the sentence referred to in the instructions deals – right from its strictly literal profile – to clarify the effective inclusion of an item in the usurious calculation, certainly not to proceed with exclusions “and that” even when the path of dichotomous interpretation has been chosen, the interpretative uncertainties that are linked have not been taken care of. to a reading resolved tout court by a contrast between “absence of constraints” (or “faculty”) and “presence of constraints” (or obligation), posed if nothing else the difficulty of delimiting the boundaries of the “obligation”, between that taken from law or contract and that fruit of a more or less accentuated constriction or however from the simple fact “.
In conclusion, it is of great interest to express the final assessments of the Court of Cassation, which appropriately recalled that normally “ bank credit agreements are prepared – in the various components in which they are articulated, insurance costs and warranty included – from the banking company; and so usually proposed, according to a unitary block (although in itself decomposable in various segments) that is, to the customer market “. This reference is mainly due to the product offer modalities, where the link between the granting of the loan and the economic item is completely evident.
On the basis of these assessments, the Court of Cassation invites the Court of Appeal to comply with the principles and indications contained in its own motivations and, in particular, with the following principle of law:
In relation to the inclusion of an insurance expense within the economic items relevant to the finding of the possible uselessness of a credit agreement, it is necessary and sufficient that the said expense is connected to the credit transaction. The existence of the connection, if it can be demonstrated by any means of proof, is presumed in the case of contextuality between the expense and the supply.