By order No. 22576 of 1 July 2026, the First Civil Division of the Italian Supreme Court once again addressed an issue of particular significance: proof of the actual disbursement of sums in connection with a mortgage loan relied upon by a bank in insolvency proceedings. The decision is of considerable importance because, consistently with the approach already adopted in the Supreme Court’s case law, it clarifies that the disbursement of credit may be validly established where the sum has in fact been made available to the borrower by means of accounting entries, provided that the borrower has assumed a clear, express and unconditional repayment obligation, without any need for the physical transfer of the sums.
Factual background
The matter originated from a decree by which the Court of Catania, while admitting to the liabilities of the bankruptcy estate the Bank’s claim relating to the negative balance of a current account as an unsecured claim, rejected the application for admission concerning the financing granted by the same Credit Institution on 15 June 2005 and secured by a mortgage. According to the Court of Catania, that latter claim could not be admitted because it was necessary to have proof of the actual disbursement of the sums, given that the loan agreement fell within the category of real contracts.
In order to prove the merits of its claim, the Credit Institution produced a bank statement showing that the sums had been credited. However, the Court found the evidentiary record submitted by the Bank to be insufficient, holding that it did not adequately prove the connection between the payment of the sums and that specific extension of credit. Accordingly, on the basis of those considerations, the claim arising from the financing agreement was excluded from the proposed schedule of liabilities.
The Credit Institution challenged the decision on the merits, arguing that the Court had failed to consider a decisive documentary element capable of linking the evidence produced to that specific extension of credit: there was full correspondence between the references shown on the statement of account into which the amount had been paid and those appearing on the statement of account connected to the financing.
The decision
The Italian Supreme Court held the Bank’s appeal to be well founded. First of all, it clarified that, although formally framed as a violation or misapplication of Article 2697 of the Italian Civil Code, the complaint in fact concerned a failure to examine a decisive fact pursuant to Article 360, first paragraph, No. 5, of the Italian Code of Civil Procedure. According to the Supreme Court, the issue was not the allocation of the burden of proof, but rather the failure to consider a specific historical fact, decisive for the purposes of the decision, emerging from the documents produced.
That historical fact consisted in the coincidence of the financing file number, which appeared both in the current account to which the sum had been credited and in the statement of account relating to the financing connected with the loan agreement. The Court therefore held that the lower court’s assertion that there was no element linking the description of the credit entry to the loan agreement forming the basis of the application for admission to the liabilities was unjustified.
The ruling is particularly significant in the part in which it refers to the prevailing case law precisely on the burden of proof in applications for admission to the schedule of liabilities in respect of claims arising from loan agreements. Indeed, the Supreme Court observed that whenever the lending Bank seeks admission of its claim to the liabilities, it discharges the burden of proof incumbent upon it by filing the receipt evidencing disbursement of the loaned sums, together with the accounting record attesting to the release of the funds. In even more pragmatic terms, the Supreme Court emphasized that, for evidentiary purposes, it is necessary only to prove that the sum was effectively placed at the borrower’s legal disposal, and nothing more. Accordingly, the requirement of disbursement of the loaned sum is assessed in a manner consistent with the economic and legal function of the loan and with the need to verify whether the borrower acquired legal availability of the funds. From this perspective, banking documentation assumes decisive importance not only where it records the transfer of the sums, but also where it enables the link between the financing agreement and the crediting of the funds to be reconstructed unequivocally.
In light of those considerations, the Court quashed the decree and remanded the matter to the Court of Catania, sitting with a different panel. Following the decision rendered by the Supreme Court, the court on remand will therefore have to reassess the factual circumstances in light of the Supreme Court’s findings and issue a ruling that takes into account those relevant factual elements, namely the correspondence of the financing file number as evidenced by the documentation produced by the Bank, so as to reconstruct the facts in accordance with the legal principle laid down by the Supreme Court.
Legal principles and practical implications
The decision provides several indications of immediate practical relevance. First, in proceedings for admission to the schedule of liabilities, a creditor relying on a loan agreement as the source of its claim must certainly prove the disbursement of the loaned sum, but such proof is not limited to demonstrating a physical transfer of the money. Rather, it is sufficient that the documentation produced shows that the funds were actually placed at the borrower’s legal disposal, including by means of a mere accounting entry or accounting movement.
Moreover, the ruling delivered by the Supreme Court highlights the role of banking documentation, requiring that it be read as a whole and in the context of the specific case at hand. Statements of account, the descriptions indicated therein, references to the financing file and other documentary elements cannot be examined in an atomistic manner, but must instead be construed in a coordinated way, in order to verify whether they make it possible to connect the crediting of the stated sum to a specific financing transaction.
In conclusion, the order under review confirms the need, repeatedly emphasized by the Italian Supreme Court, to carry out a substantive assessment of the disbursement of credit, especially in disputes concerning the admission to the liabilities of claims arising from financing agreements. For practitioners, this translates into the need to ensure particularly rigorous and meticulous documentary traceability of the disbursement process and of the link between the agreement, the credit entry and the repayment obligation, so that the claim may be fully ascertainable even in insolvency proceedings.
