Abstract

Art. 48-bis of the Italian Banking Act allows companies, in addition to the ordinary securities prescribed by the Italian Civil Code, to guarantee their financing operations by means of a new form of agreement called «transfer of immovable asset subject to a condition precedent». The above-mentioned article introduces, in the Italian judicial system, the «patto marciano» which bases its validity exclusion of the foreclosure agreement through the fair appraisal of the value of the asset by a third party; well as on the obligation of the secured creditor to give back the surplus to the debtor. The choice of our legislator to introduce the «patto marciano» and, at the same time, prohibit the foreclosure agreement is based on the need to balance opposite interests, which have exclusively a financial nature concerning the disproportion between the value of the secured asset and the outstanding debt.