The pactum marcianum is a pact between the financier, and the financed party stating that, if the debtor does not return the financed amount, the financier acquires the ownership of the good given in guarantee. Article 2 of the Law Decree no. 59, May 3, 2016 (the so-called Banker Bailout Decree) converted into Law no. 119/2016, provides for a particular version of the pactum marcianum.The new provision - i.e. article 48bis of the Legislative Decree no. 385/1993- states that the amounts financed by banks (or by other authorized financing entities) to entrepreneurs can be granted by the transfer, subject to the condition precedent of the breach of the debtor, of a real estate property (or of another right in rem on real estate), belonging to the debtor or to companies controlled by the same or affiliated; the pactum marcianum may also be entered into (in writing) in relation to existing financing contracts. Any kind of real estate can be used for the above purpose, except for properties used as main houses. If the breach of the obligation occurs, the creditor is entitled to take advantage of the pactum thus becoming the owner of the real estate (or of the right in rem); in that case, the debtor (or the granting third party) will be paid an amount equal to the difference between the value of the real estate (or of the right in rem), estimated by an expert, appointed by the Courts, and the amount of the debt.


For more information, please contact: Maria Grazia Colombo