With the Order No. 22606, published on 2 July 2026, the First Civil Division of the Italian Supreme Court of Cassation addressed the procedural issue concerning the allocation of the burden of proof between a bank and its customer with regard both to the existence of an overdraft facility and to the legal nature of payments made into the current account by the account holder.
The Italian Supreme Court clarified that, “as regards the allocation of the burden of proof under Article 2697 of the Italian Civil Code concerning the nature of payments made into a current account, the account holder bears the burden of pleading and proving not only the payments themselves but also the limit of the credit facility, since only this enables such payments, made to offset unlawful debit entries, to be characterised as either restorative or repayment payments” (Italian Supreme Court, No. 22606/2026), further specifying that “payments have a restorative character where the debit balance does not exceed the overdraft limit, whereas all other payments constitute repayment payments” (Italian Supreme Court, No. 22606/2026).
A payment made by the account holder may therefore serve two distinct purposes. It constitutes a repayment payment where, in the case of a current account not supported by a credit facility, the account balance is negative (so-called scoperto (unauthorised debit balance)), or where, in the case of an account benefiting from a credit facility, the outstanding debit balance exceeds the agreed credit limit (so-called sconfinamento del fido (overdrawing beyond the authorised credit limit)). Conversely, a payment has a restorative function where it is made into an account benefiting from a credit facility at a time when the outstanding debit balance remains below the authorised limit, thereby restoring the available funds and, as a consequence of the payment, increasing the account holder’s available borrowing capacity.
The Italian Supreme Court first reiterated that an account holder bringing an action for restitution of undue payment pursuant to Article 2033 of the Italian Civil Code, or seeking the removal of unlawful debit entries from the calculation of the outstanding account balance, bears a twofold burden: to plead the payments made and to prove their legal nature, namely whether they constitute repayment payments or restorative payments.
With specific reference to a current account credit facility agreement, the account holder is also required to prove the amount of the authorised credit limit, as this is necessary in order to determine the legal nature of the payments.
In this regard, the Italian Supreme Court clarified that such proof is required irrespective of when the agreement was concluded: “even where a current account credit facility was entered into before the entry into force of Article 3 of Law No. 154 of 1992, and may therefore have been concluded per facta concludentia and proved by any means, it nevertheless remains necessary, for the purpose of determining the nature of the payments, that at least the amount of the credit facility granted to the account holder be established” (Italian Supreme Court, No. 22606/2026).