La rilevanza degli interessi moratori ai fini del sindacato in tema di usura

The issue of usury is at the center of the current jurisprudential panorama, both for its economic ramifications and for the numerous interpretative doubts yet to be resolved. The usury suppression system was redesigned with Law n. 108/1996, who set out a framework to identify the usury threshold, a value beyond which interest rates are considered usurious. The aforementioned threshold rate is updated quarterly and is based on the average interest rates recorded for homogeneous categories of transactions, implicitly taking into account trends in the credit market. As the discipline is relatively young, in the past 25 years scholars have faced numerous hermeneutical questions, among which the study of the relationship between default interest and usury is particularly important. According to the majority opinion of the Court of Cassation, default interests relevant to the L. 108/1996. The main argument is the presumed homogeneity between interest and default interest, as both, in a way, represent the opportunity cost of capital. A further topic derives from the interpretation of art. 644 c.p. and 1815 c.c., introduced by D.Lgs., 29 December 2000, n. 394, which has resolved the doubts on whether default interest falls within the scope of the usury definition. Not only is it necessary to investigate whether default interest can be considered usurious, but also when it can be treated as such and hence subject to Law n. 108/1996. I will take into consideration the theories that have developed on the subject, to verify whether default interest should be added to the regular interest rate and other fees, or if penalty interest rates are to be assessed separately. The consequences of the possible usury of default interest will then be addressed, in order to understand if art. 1815 c.c. can be applied in a civil court and, if so, whether it also applies to regular interest rates. Finally, this paper will take into consideration the minority opinion - which seems preferable - according to which default interest rates do not fall under the scope of Law n. 108/1996, given that the current wording of the discipline seems to refer only to regular interest rates. In this perspective, however, the stipulation of manifestly excessive default interests does not remain without control by the legal system, since the clause that identifies the default rate can be subsumed within the genus of contractual penalties and therefore reduced in court if you have an excessive value.