When the law requires a contract to be in writing (the so-called written form ad substantiam), is the signature of a sole contractor sufficient for such contract to be considered as having been validly executed?
The Italian Supreme Court dealt, in judgment no. 4564/12 handed down by it, with the question of the validity of a bank current account contract.
In the case at hand, the bank’s current account holders raised the defense that the contract was null and void on account of the fact that they had signed it but not the bank, with the result that such contract was alleged not to have been executed in writing since the instrument signed by the petitioners was only a unilateral statement that did not prove that it had been executed by both parties.
The Italian Supreme Court held, instead, that the contract was valid.
The Supreme Court judges ruled, in fact, that, as admitted by the petitioners, the bank had filed in similar proceedings a copy of a bank account contract that had been signed by the current account holders (who had unsuccessfully claimed that the copy in their possession only contained the bank’s signature and that, therefore, the contract had not been correctly executed since the requirement for such contract to be in writing had not been observed).
The Court held that the contract had, instead, been performed by both parties since investments orders had been made and bank statements had been sent to the bank’s customers.
More generally, the Supreme Court has held on numerous occasions that – as regards contracts which the law requires to be in writing – contractors do not have to affix their signatures on the contracts simultaneously and has ruled on several occasions that the filing in judgment of the contract by the party that did not execute the contract and any manifestation of intent in writing addressed to the counterpart by the non-signatory party to the effect that it would avail itself of such contract is tantamount to signing the contract in question (provided that the signatory party has not previously revoked its consent and the latter has not ceased to exist; cfr. Italian Supreme Court judgments nos. 2826/00, 9543/02 and 22223/06).
It follows therefrom that: Even if one were to be of the opinion that the bank had not signed a copy of the contract, the petitioners’ intention to avail themselves of the contract would, in any event, not only transpire from the filing in judgment of such contract, but also from their intention to do so communicated to the defendant bank whilst they were customers of such bank (the sending of the banks statements would also be sufficient for such purposes, with the result that such contract could be construed as having been executed).
This judgment appears to be compliant with the spirit and wording of those provisions which require given types of contracts to be in writing.
The Italian legislator’s intent seems, in fact, to be that of guaranteeing legal certainty for those parties who undertake a contractual obligation by signing a contract (such signature signaling the fact that they know/are in a position to know the terms and conditions thereof).
In the event that only one signature has been affixed, the validity of the contract will depend upon the circumstances in which contractual relations between the parties have taken place.
The nullity of a contract may be claimed with greater force by the party which has not signed the contract (in the case at hand the bank, which, however, filed the contract) and not, instead, by the party which affixed its signature thereto.
We must ask ourselves, moreover, for the purpose of the contract’s validity, whether the parties can be construed as having performed such contract: The answer is yes since, in the case at hand, the bank’s current account holders carried out acts which showed how they considered the contract to have been validly executed and in force.