The bank is responsible for the misconduct of its financial advisor
in recent years have increased cases of misconduct of the financial advisor to the customer.
The typical case addressed in the ruling that we propose below, is the promoter who appropriates the money received from the client for individual investments.
The Court reiterated the principle of liability of the bank for the tort of its own promoter, as there is an essential link between the activity of the promoter and the bank.
In the eyes of the customer, in other words, the promoter is the bank which has a duty to check the regularity of the activities carried out by private bankers. In
any failure of control, the bank must reimburse the amounts not paid by the professional customer.
Court of Cassation, sez. III Civil
decision of 10 December 2010 - January 25, 2011, No 1741
President Amatucci - Rapporteur Amendola
Conduct of case
The facts of the case may be so reconstructed on the basis of the decision under appeal.
With mention of L. October 30, 2001. D. agreed in court before the Court of Trieste BNL Investimenti SIM pa (hereafter BNL SIM) and T.. R. seeks an order to pay damages in the amount of Euro 432,671.06, as well as appreciation and interest.
He exhibited that in the years 1995/1996 was carried out at the instructions of R., who at the time of the BNL-firm financial advisor, had proposed a number of foreign investments, payments of substantial sums, partly through subsidies in favor of Trust Management and BNL GE.FIN. SA of San Marino, partly through checks delivered directly to the Royal and he received, that the suspicious lack of communication from the BNL, he contacted the company, which informed her that it had found its position and no longer had any relationship with the R.. that these checks consegnatile, in response to its call for disinvestment, had gone protested, the R . , Taken to court to answer the offense under Article. 646 cod. proc. Civ. in his injury, he had bargained that the same was also erased from the register of the promoters for the disposal of CONSOB, which were given to them jointly and severally liable to the R. and BNL, art. 5 Law of 2 January 1991, n. 1, then replaced by Art. 23 Leg. July 23, 1996, No Article 415 and after. 31 Legislative Decree no. 58, 1998.
BNL formed in the case, contesting the adverse claim, asking for and getting to call in question, to be harmless if unsuccessful, Lloyds of London, a company which had entered into an insurance policy for civil liability and GE.FIN. SA
I called into question, in turn, asked dismissing the claims against them.
By decision of 5 February 2004 the court sentenced the defendants, jointly and severally, to pay to the actress, the sum of Euro 276.859r00, plus interest, Lloyds of London ordered to indemnify BNL, within the limits of 80% of the amount paid to D.; condemned R. BNL to repay what it would pay as a result of the award. Proposed main appeal
BNL Investimenti SpA and cross by Lloyds of London, the Court of Appeal of Trieste, on 26 April 2006, has agreed, to the effect rejecting the application made by L.. D.
against this proposed preliminary appeal DL, put forward four reasons with slavish questions and serve the document in Rasbank spa, T.. R, to Lloyds of London and GEFIN SA
resist with two distinct responses Rasbank SA and Lloyds, former Lloyds of London.
All parties submit a statement.
Reasons for Decision
1.1 grasping its first plea alleges infringement of the Articles. 5, section A, the Law of 2 January 1991, n. 1, 23, law no. July 23, 1996, No 415, 31 Legislative Decree no. 58, 1998, 2049 and 2697 cod. civ ..
object of criticism is the assumption that the trial court, having regard to the provisions of the rules mentioned before - designed to establish the liability of the broker for damages caused to third parties in carrying out the tasks entrusted to financial advisors - was necessary to be able to claim responsibility for the SIM, the bestowal of money had been exclusive purpose (pursued by the investor), to carry out investment transactions proposed by the developer as part of the products of the SIM (was) responsible for the duties, provided, however, that the burden of proving the above fact weighed on one who invokes it, and it means that the investor, as it is giving rise to the claim.
1 / grasping hand, maintains that the responsibilities set by the rules before mentioned, which is substantively sovrapponile, is an indirect nature and, ultimately, objective, resulting burden of the injured to try to link only on an occasional basis between tort and the provost exercise of their duties, and not a specific aim of investing in the SIM products for which the developer had worked, it was therefore the principal company of the test release of purely personal relationship established between promoter and investor.
According to the exponent, Articles. 5 Law of 2 January 1991, n. 1, 23, paragraph 3, law no. 23 July 1996 and 31, paragraph 3, law no. February 24, 1998, No 58, have a normative content that is substantially contiguous with art. 2049 cod. Civ., hence the applicability to the facts alleged in court, the principles developed in part here by the case in accordance with the repeatedly held by the Supreme Court.
In this perspective, the Curia would have to stop at the local account that the activity of the promoter of R., who had previously cared for various investments D., had facilitated the commission of the offense, giving him the opportunity to accredited to the customer, and so regardless of financial instruments in the acquisition of which was spent dell'investitrice savings. 1.2
its second half the applicant alleges violation of Articles. 5, paragraph 4, Law of January 2, 1991, No 1, 23; Leg. July 23, 1996, No 415, 31, Legislative Decree no. 58, 1998, 2049 and 1227 cod. civ .. The complaints are pinned against the exploitation of the irregularity of payments made by investors, while not new to such operations, in the key of the absence of any evidence that production of the essential link between the damage and carry out the tasks to which R. was appointed by the SIM.
A refutation of the arguments made by the Court of Appeal, the grasping points out that, according to the case of legality, illegality of the means of payment can not be assessed in terms of interruption of the link to an occasional basis, but at most, in competition with other elements, in order to assess the guilt of the parties, pursuant to Art. 1227 cod. Civ. And the view that the agent can not download saver on the risk of violating rules of conduct imposed on promoters whose work it uses.
1.3 grasping its third plea alleges the failure, inadequate and contradictory reasoning as regards the assessment of the evidence.
reiterated that, in any case, prove the actress was not for the finalization of its payments to the purchase of financial products of the SIM reference promoter, shows the exponent as the reports produced in court and reported in the application, in two cases signer by the promoter, specifically mentioned the intention of making an investment-saving online money / bond BNL action, so, against tale materiale probatorio non era sostenibile che la finalità perseguita dalla D. fosse quella di eseguire un prestito personale al promotore.
1.4 Col quarto mezzo si deduce omessa considerazione di un fatto decisivo, ai fini della valutazione del nesso di occasionalità necessaria, quale la delibera della CONSOB di radiazione del R. dall’Albo dei promotori finanziari, delibera adottata proprio a seguito di segnalazione, per iniziativa della stessa SIM ora convenuta in giudizio, dei fatti oggetto del presente giudizio, con conseguente insostenibilità dell’assunto secondo cui le dazioni di danaro sarebbero state eseguite a fini personali e non di investimento.
2 Le censure, che si prestano a essere esaminate congiuntamente, per la loro stretta connessione, sono fondate.
Occorre muovere dalla considerazione che gli artt. 5, comma 4, legge 2 gennaio 1991, n. 1, 23, d.lgs 24 febbraio 1998, n. 415, e 31, comma 3, d.lgs. 24 febbraio 1998, n. 58, via via succedutisi nel tempo, pongono a carico dell’intermediario la responsabilità solidale per gli eventuali danni arrecati a terzi nello svolgimento delle incombenze affidate ai promotori finanziari anche se tali danni siano conseguenti a responsabilità accertata in sede penale.
Non interessa in questa sede soffermarsi a discutere se quella così configurata sia o meno una forma di responsabilità oggettiva, or investigate, in the abstract, its systematic relationships with the liability provided, in general, art. 2049 cod. Civ. paid by employers and contractors for the unlawful acts attributable to domestic and committed, even if the jurisprudence of this Court has repeatedly stressed it belonging to the same conceptual area (Cass confr.. Civ. July 24, 2009, No. 17393) . Press
instead emphasize that the aforementioned principal responsibility of the intermediary, which still requires that the unlawful act of the promoter is bound by a nexus of occasional necessary to carry out duties belonging to him (see Cass. No 20588 of 2004 and Cass. 10580 of 2002) trova la sua ragion d’essere, per un verso, nel fatto che l’agire del promotore è uno degli strumenti dei quali l’intermediario si avvale nell’organizzazione della propria impresa, traendone benefici ai quali è ragionevole far corrispondere i rischi, secondo l’antica regola per cui ubi commoda et eius incommoda ; per altro verso, e in termini più specifici, nell’esigenza di offrire una adeguata garanzia ai destinatari delle offerte fuori sede loro rivolte dall’intermediario per il tramite del promotore, giacché appunto per le caratteristiche di questo genere di offerte la buona fede dei clienti può più facilmente esserne sorpresa e aggirata (confr. Cass. civ. 7 aprile 2006, n. 8229).
Se dunque la trasparente ratio legis è quella di rafforzare la garanzia del risparmiatore e se, in tale ottica, il legislatore ha avuto cura di precisare che la commissione di un illecito penale da parte del promotore non può essere invocata dal soggetto abilitato come causa di interruzione del nesso di causalità (perché di questo, in definitiva, si tratta), l’assunto secondo cui per affermare la responsabilità della S.I.M. è necessario che la dazione di denaro sia avvenuta all’esclusivo fine, perseguito dal risparmiatore, di effettuare le operazioni di investimento nell’ambito dei prodotti della stessa preponente – assunto che costituisce uno dei postulati intorno ai quali rotate the argumentative system of judgment - is irresistibly wrong.
it is sufficient to consider that the indices hermeneutic not only do not support such a reading, but rather deny, to the extent that the regulatory mechanism is so arranged as to empower the intermediary in respect of the conduct of parties - what are the promoters - that he himself chose, whose work relies on the pursuit of his business interests, and which, consequently, no intermediary is actually better able to exercise effective forms of control, so that nothing in the authorization to give an incisive performance of the tasks entrusted to financial advisors a value investor protection restricted to transactions involving securities of the SIM principal. 3 Pure
criticisms are shared to the alleged absence of any evidence as to the finalization of the payments made by D. . Purchase financial products, because of irregularities of the same.
On this point, this Court has repeatedly stated that the regulations that Consob has been called to dictate, in accordance with the provisions of Articles. 5, paragraph 8, the Law of 2 January 1991, n. 1, 23, paragraph 6, Leg. July 23, 1996, No 415 and 31 ^ Leg. February 24, 1998, No 58, in order to rule that the promoters must follow when receiving sums of money from their customers, are consubstantially conduct intended to place obligations on the part of the promoter and draw their source from the legal requirement, such as those cited, expressly protecting the interests of the investor, so that the is not logical to postulate that they, conversely, result in a burden of care borne by the latter, such that any violation of the requirement by the promoter will be resolved in a charge of misconduct (competitor, if not exclusive) responsibility of the customer damaged altruism tort.
In essence, the implicit assumption from which moves all the provisions volte a conformare a regole prefissate il comportamento di intermediari e promotori è proprio l’insufficienza delle tradizionali forme di tutela dell’investitore affidate alla mera sottoscrizione di moduli e formulari, di talché, ove si ammettesse la possibilità per l’intermediario di scaricare in tutto o in parte sull’investitore il rischio della violazione di regole di comportamento gravanti sui promotori, si finirebbe per vanificare lo scopo della normativa.
In tale contesto, ancorché non sia stata affatto negata, in assoluto, la possibilità di applicare l’art. 1227 cod. civ. (comma 1 o 2, a seconda dei casi), qualora l’intermediario provi che vi sia stata, se non addirittura collusione, at least make an informed and active acquiescence of the customer to the violation by the promoter of rules of conduct imposed on the latter, however, has ruled out is that the mere allegation that the Customer has delivered to financial advisor sums of money manner different from the way it would have been entitled to receive it is worth, in case of misappropriation of such sums by the promoter, to break the causal link between the conduct of the same financial advisor and consumption offense, and therefore precludes the possibility of invoking the liability of the intermediary principal; is that such a fact can be adduced as a contributory cause of the damage suffered by the intermediary by the investor as a result of the offense consumed by the promoter in order to reduce the amount of compensation payable (confr. Cass. Civ. No 8229 of 2006 No. 17393 of 2009, cit.). 4 follows from the
has been said that the approach of the court of inquiry on the material acquired was misled by a basic misunderstanding as to the incidence of irregularities attached to some of the means of payment used by the investor for the purchase of financial products. To this should be added that the failure to take the measure of radiation R. adopted by CONSOB, acquired the records of proceedings, certainly implies a lack of reasoning, since the document, if not decisive, certainly potentially significant level of involvement in the affair of the principal obligation in question.
Ultimately, in allowing the appeal, the decision under appeal must be quashed with reference to the Court of Appeal of Trieste, a different composition, which will also the costs of these proceedings and determinations, in addition to taking into account the measure of radiation above- above, shall observe the following principles of law:
1) Articles. 5, paragraph 4, Law of January 2, 1991, No 1 Legislative Decree 23 February 24, 1998, No 415, and 31, paragraph 3, law no. February 24, 1998, No 58, which pose charged to the intermediary's liability for damages caused to third parties in carrying out tasks entrusted to financial advisors, even if such damage resulting from liability established by criminal courts, requiring, for the subsistence of the liability of the authorized person, a relationship of necessary tasks assigned occasionally between fact and of the promoter, the relationship, not a priori confined to negotiations that have financial products of the SIM principal, is apparent in all cases in which the conduct of the promoter is part of the functional activities to ' performance of duties assigned to the same;
b) the fact that the customer has delivered to financial advisor sums of money in a manner different from the way it would have been entitled to receive, does not apply in cases of misappropriation of such sums by the promoter to break the causal link between the progress of the financial advisor and the consummation of the offense, and does not preclude, therefore, the possibility of invoking the liability of the intermediary principal. This fact, in the absence of other evidence, nor can it be identified as a contributory cause of outright damage suffered by the investor, as a result of the offense consumed by the promoter al fine di ridurre l’ammontare del risarcimento dovuto.
P.Q.M.
La Corte accoglie il ricorso; cassa la sentenza impugnata e rinvia alla Corte d’appello di Trieste in diversa composizione, anche per le spese del giudizio di cassazione
The Decree approved Milleproroghe Quach days ago, the Government has followed the first steps towards the abolition of interest on contezioso anatocistici, with considerable advantage in favor of the banking system, now steadily losing in lawsuits against the current is then forced to repay the sums taken away with the " calculating interest on interest. " 
