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The compounding BANK

The banks have always charged quarterly interest expense and other fees paid annually and credited to interest income. This practice involves the ends of the recipient, the effect of interest on interest in the quarter after the charge, with a real cost to the current higher than the nominal agreed at the beginning of the report.

With the Legislative Decree 342/1999 (article 25) the legislature has acted on the matter, leaving the Interministerial Committee for Credit and Savings (CICR) to determine the procedures and criteria for the production of interest on interest in different types banking. The same ICRC therefore, by resolution dated 9.2.2000, has granted to banks, the eventual capitalization (including interim) and interests of debtors and creditors for the interests of various banking transactions, but under strict conditions:

• the capitalization periodic inspection must be uniform for both debit interest and the interests creditors;

• must be provided to customers the appropriate level of transparency to the stipulations concerning the compounding, stating, inter alia, the frequency of capitalization and its effects on the rate compared on an annual basis (for example, the nominal rate and effective rate of 1.00% annually with quarterly capitalization 1.02%);

• the clauses relating to the capitalization of interest must be specifically approved in writing by the client;

• final closure marks the end of the current account of operation of the mechanism anatocistico.

Resolution of 9.2.2000 ICRC entered into force on 22.4.2000. Therefore, for contracts concluded before the entry into force of the resolution, the agreed conditions would be appropriate before 30.6.2000 and its effects would have expired from 1 .7.2000, with the specific approval of the customer in case of worsening conditions than those applied earlier and simple communication with the customers by 31.12.2000 if the new terms were not behaving worse.

born at this point the problem of identifying what are the items that are subject to the legislation and which are instead sull'anatocismo the excluded items. And 'well-known fact that banks use to charge, on a quarterly basis, not only simple interest on debt (Interest = Capital x Rate x Days: 365) but also other additional items such as:

• the Board of
• overdraft fees for each transaction
• closure costs and send the account statement
• expenditure for the renewal of credit, etc..

have spoken on this subject is the Bank of Italy is the Italian Exchange Office who, by communications .1.2003 8 (BI) and 18.2.2003 (UIC), said that the only item that was amenable all'anatocismo on simple interest. However, given that these institutions are representative bodies of the banking world and also taking into account that their communications may not have the same value of the law, this claim can be shared for various expenses but may not be shared for the Board of overdraft .

The nature of the latter (cms), in fact, has long been debated in the literature in order to identify the consequences both for dell'anatocismo is to exceed thresholds usurious.

The method of calculation used by banks (a maximum rate debt exposure in the quarter reached) could be considered ancillary to the Committee on an item to add to the interest expense, as such rules dell'anatocismo.

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overdraft charges

The Commission is the amount of overdraft to the Bank's obligation to provide a certain amount of accreditation for a specified period, regardless of its use. In practice, the bank has gradually departed cms by that term, assuming, in fact, the characteristics of an additional remuneration at the rate of interest.

The criteria for calculating the cms, the absence of a specific clause which describes the nature and method of application, can vary from bank to bank and are difficult to understand. Can be calculated: the absolute maximum on a negative balance resulting in the reporting period, regardless of its duration, as a relative, on the debit balances (individual or aggregate) provided for longer than a certain number of days on a mixed on the maximum debit balance in absolute terms, however, that there is a period of more than uncovering a number of rounds. These difficulties in understanding and application of methods for calculating a risk of invalidity for indefiniteness of the stipulation of the object (art. 1346 cc) and contrary to the obligation of writing (art. 117 Tub).

The nature of the CMS has long been debated, it is difficult to find a basis for clear and unambiguous: it is still open the question of its proper legal classification and the resulting economic function.

proper definition of the Board of overdraft charges has been given for the first time, the Court of Cassation Judgement No 870/06 of 18 January 2006. The Court has defined the cms: " E ' the remuneration paid to the bank for the provision of funds to the account holder regardless of the actual withdrawal of the sum . It follows necessarily that the Board should be calculated or the entire amount of the sum made available by the bank (if not used), or on the amount remaining in the availability of customer usage, but not used by itself.

In the banking practice of overdraft is calculated not on the amount assigned or remained available, but the maximum amount used in the closing period - usually a quarter - and for each day of that period, in blatant violation of the definition provided by the Supreme college just remembered.

CMS can not be considered neither interest nor an accessory of interest, but, in fact, represents an additional burden with respect to the amount due from the client for interest expense, burden, in the absence of specific written agreement that it contains the exact determination is no art. 1284, 1418 and subsection 2, paragraph 2, DC (Court of Tortona 19/05/2008).

The Bank justifies the cms as a consideration of the sums made available by the Bank. The consideration concerns the dis-economy (the Bank) due to the unavailability of the amount budgeted, without being able to enjoy the utility of interest would be payable on actual usage of the credit line (the Bank makes available to the customer who receives a sum without interest). If this is the justification for the Bank, it should be concluded that CMS should be calculated solely and only if the client had never used a credit, or the difference between the theoretical appropriation and the amount actually used by the customer . It is this sum that the bank receives the interest as a consideration of the use of funds made available.

depict the commission is a percentage calculated on the amount of credit granted, net of the (If the agreement is 1000 and the client uses the calculation basis is 1000, it uses 600, the calculation basis is 400). In practice, as mentioned above, the Bank requires a true maximum overdraft fee calculated on the day of maximum indebtedness of the period of closure of account (usually quarterly), following criteria completely opposed to those declared to justify cms.

Moreover, the cms, is governed by our legal system only with the entry into force of Law 2 of 28 January 2009. With the above-mentioned law is expected to return to the Bank only in cases of " predetermination in writing, no renewal by tacit agreement, some elements of contract ". The elements under contract, on pain of nullity of the clause, are: the compensation for the provision of funds and the borrowing rate for the amounts used. Of these must be given special emphasis and accountability to the customer.

Previously, in the legislative vacuum, the CMS was governed by regulations and banking contracts, and was applied by the Bank during the periodic closing of the account. Moreover, referring to the annual closure, the CMS should be calculated the same way as interest payments, in the annual closure.