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Cessione del credito a scopo di garanzia

Tra massime mentitorie e autorità morale del precedente

Gabriella Verdura    



The purpose of this contribution is to show an incorrect genesis of the legal precedent, referring to the assignment of receivables as collateral, through the analysis of the so called “leading case” on the topic. The legal orientations must be unique in order to be binding. However it should be noted, related to the assignment of receivables as collateral, that the case law is far from being univocal, even though some scholars have recognized a kind of uniformity. Analyzing the judgment of the Supreme Court n. 4057 of 1956, it is noteworthy to observe that two important scholars have expressed two different ideas about the same pronunciation. In the view of the first scholar, the Court was concerned about the legitimacy of such a legal transaction; on the other hand, the above mentioned judgment has been counted among those judgments in favour of the eligibility of the assignment of receivables as collateral. However through a careful reading of the entire judgment, it emerges that the issue has not be really addressed by the S.C. (S.C. has not really addressed this issue). It is common that the abridgment mirrors “obiter dicta”, because the abridgers simply extrapolate the enunciation of a rule of law without verifying whether it is really the legal basis of the decision. It may well happen that an “obiter dictum” becomes the starting point for the formation of a “binding” precedent: that is the case. This may be regarded as an example of a degenerative phenomenon. Even though this anomaly has been strongly opposed, no significant effect has been noticed so far.

June 30, 2012
Copyright: © 2012 Gabriella Verdura. This is an open-access work distributed under the terms of the Creative Commons Attribution License (CC BY). The use, distribution or reproduction is permitted, provided that the original author(s) and the copyright owner(s) are credited and that the original publication is cited, in accordance with accepted academic practice. The license allows for commercial use. No use, distribution or reproduction is permitted which does not comply with these terms.