A banking contract that contains the clear and precise statement of agreed conditions, complies with the requirements set by the legislator, bears a date, is signed by the customer alone and has been effectively executed must be considered concluded and free from formal defects.
1 The Core Principle: Protective Nullity
Non-compliance with the obligation to stipulate banking contracts in writing constitutes a relative nullity that can be asserted only by the customer and can be raised ex officio only for the customer's protection.
The Rationale of the Legislation
The nullity under Art. 127 of Legislative Decree 385/1993 constitutes a protective nullity: it does not serve to protect third parties or public interest, but only to guarantee the customer as the weaker contracting party vis-à-vis the banking institution.
2 Requirements for the Conclusion of a Banking Contract
To satisfy the ratio of written form ad substantiam under Art. 1350 c.c., it is sufficient that the customer signs a document containing the elements prescribed by law:
Clear and precise statement of agreed conditions
Compliance with requirements set by the legislator
Contract bearing a date
Signed by the customer in full and specifically where required
Effectively executed
3 The Role of Conclusive Acts
For the conclusion of the contract, the effective establishment of the banking relationship constitutes a conclusive act that is more than unequivocal. The customer may withdraw, but cannot revoke consent that has already met with the counterparty's acceptance given through conclusive acts.
Key Point
The bank's signature is not necessary for the conclusion of the contract. The effective establishment of the banking relationship (use of the account, deposits, withdrawals, etc.) constitutes sufficient proof of acceptance.