Security, property, succession and public law

Fideiussione: the same word, two regimes

Suretyship is the field in which a translation from Italian into Swiss Italian can destroy a security. Both legal orders call the contract fideiussione and define it as the undertaking of a third person to answer for the debt of another. The regimes, however, are built on opposite policies. Italian law treats the fideiussione as a contract without prescribed form. Article 1937 c.c. requires only that "la volontà di prestare fideiussione deve essere espressa" (the will to give a suretyship must be express), and commentators read this as a requirement of clarity that can be met in any form.¹ The Italian legislator intervened only for guarantees of future obligations. Since Law No. 154 of 17 February 1992 on banking transparency, Art. 1938 c.c. requires that a suretyship for conditional or future obligations state the maximum amount guaranteed, a rule aimed at the fideiussione omnibus by which Italian banks had secured all present and future debts of a client.²

Swiss law protects the surety far more strictly. Under Art. 493 CO a suretyship is valid only if given in writing and if the document states the maximum amount for which the surety is liable. If the surety is a natural person, the declaration must in addition be made in the form of a public deed when the amount exceeds CHF 2,000. Up to that amount, it suffices that the surety writes the amount for which he is liable by hand in the document itself. A married surety requires the written consent of the spouse under Art. 494 CO.³ An Italian-style fideiussione signed in Lugano by an Italian entrepreneur for the debts of his company, without a maximum amount and outside a public deed, is therefore void under Swiss law if Swiss law governs it. Banks in Lugano know the problem and avoid it by taking pledges of assets or by drafting independent guarantees. Here the next false friend appears. The independent guarantee of Swiss law is based on Art. 111 CO, whose Italian heading is "Promessa della prestazione di un terzo" and whose text reads: "Chi promette ad altri la prestazione di un terzo è, se questa non segue, tenuto al risarcimento del danno che ne deriva."⁴ Swiss courts distinguish this guarantee from the accessory suretyship by its independence from the main debt. A document called fideiussione is presumed to be a suretyship, and in case of doubt Swiss case law tends to qualify an undertaking by a private person as a suretyship, with the consequence that the form requirements apply.

Italian practice calls the independent guarantee contratto autonomo di garanzia or garanzia a prima richiesta, a figure developed by the courts and not codified. A Lugano bank that uses an Italian template with the title fideiussione and the clause a prima richiesta e senza eccezioni invites a dispute about qualification before Swiss courts. The safer course is to give the document the Swiss title garanzia and to state expressly that the guarantor's obligation is independent of the validity and enforceability of the secured debt. Where the guarantor is an Italian consumer and the guarantee may have to be enforced in Italy, the Italian rules on unfair terms add a further layer, to which the section on drafting returns.

Notes

1. Brocardi.it, "Art. 1937 Codice civile – Manifestazione della volontà", https://www.brocardi.it/codice-civile/libro-quarto/titolo-iii/capo-xxii/sezione-i/art1937.html. ↩
2. Brocardi.it, "Art. 1938 Codice civile – Obbligazioni condizionali o future", https://www.brocardi.it/codice-civile/libro-quarto/titolo-iii/capo-xxii/sezione-i/art1938.html (amendment by Law No. 154 of 17 February 1992, in force since 7 July 1992). ↩
3. CO, Art. 493(1)–(2) (written declaration stating the maximum amount; public deed for natural persons, handwritten statement of the amount sufficing up to CHF 2,000), https://www.droit-bilingue.ch/fr-it/2/22/220-493-708.html; Art. 494(1) (prior or simultaneous written consent of the spouse), https://www.droit-bilingue.ch/fr-it/2/22/220-494-709.html. ↩
4. CO, Art. 111, Italian text at https://www.droit-bilingue.ch/en-it/2/22/220-111-123.html. On the distinction between suretyship and guarantee and the presumption in favour of suretyship for private persons, see the case law collected in the commentaries on Art. 111 and 492 CO. ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of August 2025.