United Sections
The joint Sections, therefore, not only “save” the loan agreement, deeming that the violation of the limit of financeability does not represent a conflict with an imperative rule (for the reason that it is preordained only to the specification of the object of the agreement) and , therefore, do not concrete a cause for nullity of the contract, but also even save the land characteristic of the mortgage, with all the application benefits that follow.
The Cassation reaches this conclusion with a somewhat complicated reasoning. It starts from the observation that the contracting parties to the loan actually intended to take out a loan with the characteristics of a real estate loan and that they then conflict over its validity (supported by the lending bank) or invalidity (supported by the borrower).
The qualification conferred by the parties to a contract
In view of this consideration, the Cassation affirms that the judge cannot alter the qualification conferred by the parties to a contract, unless the contract is invalid (and, therefore, its convertibility into a valid contract is being discussed in court; but , as mentioned, in this case the nullity is to be excluded) or unless this qualification is itself the subject of a dispute in court.
In this last regard, the Cassation affirms that, when it comes to carrying out the requalification of a contract, it is necessary to proceed in strictly objective terms in order to reconstruct what was the common intention of the contracting parties.
Well, if this common intention (adduced by the parties themselves or ascertained by a judge) is precisely that of stipulating a land loan contract, the judge cannot go beyond it and re-qualify the contract submitted to his examination so that it produces the effects of a different contract , as, in the specific case, would happen if a land loan contract were reconfigured as an ordinary loan.