Leasing as a form of shareholder financing: the subordination, pursuant to article 2467 of the Civil Code, of systematically uncollected lease payments
By order no. 13672 of 11 May 2026, the Supreme Court affirmed the principle that the letting of a property to the company by a shareholder also falls within the scope of shareholder financing referred to in article 2467 of the Italian Civil Code, where the systematic failure to collect the relevant rent amounts to a voluntary and beneficial financial contribution by the shareholder, enabling the company to avoid immediately incurring the corresponding cost.
The qualification of uncollected rent as an indirect financing
The dispute originated from an application for the inclusion of a claim in the list of liabilities in the bankruptcy proceedings of a limited partnership (società in accomandita semplice), submitted by the company leasing the industrial warehouse to the bankrupt company. The lessor, in its capacity as a limited partner (socia accomandante), sought, inter alia, the admission of its claim for rent due and unpaid by the tenant for approximately eight years as a preferential claim. The lessor argued that the claim was privileged under articles 2764 and 2784 of the Italian Civil Code; in the latter case, because it had obtained from the subsequently bankrupt company a pledge over all movable assets as security for the payment of the rent.
The Court of Vicenza, by order of 27 March 2025, had admitted the claim as an unsecured and subordinated claim pursuant to article 2467 of the Italian Civil Code, characterising the failure to demand payment of the rent for eight years – whilst a shareholder company continued to use the property, progressively increasing its debt exposure – as a form of shareholder financing, and further declaring the deed of pledge null and void pursuant to article 1344 of the Italian Civil Code, on the grounds that it circumvented the mandatory nature of article 2467 of the Italian Civil Code. The lessor lodged an appeal against this decree with the Supreme Court.
The broad concept of shareholder financing and the relationship with the pledge
The Supreme Court, in declaring the ground of appeal inadmissible, reiterated that article 2467 of the Italian Civil Code defines the concept of shareholder financing “in the broadest possible terms”, so as to include any subjective legal position that can be qualified as a claim against the company, regardless of the legal structure employed. Referring to its own previous rulings (Supreme Court no. 3017/2019 and no. 30054/2023), the Supreme Court clarified that the phrase “in whatever form they may be made” covers all conclusive conduct by the shareholder involving a transfer of assets accompanied by an obligation to repay them in the future, including the provision of guarantees and supplies without consideration which result in a voluntary economic contribution capable of enabling the company to avoid incurring an immediate cost. This scope therefore also includes the omissive conduct of a shareholder-lessor who, being aware of the excessive imbalance in the tenant company’s debt, systematically fails to demand payment of the rent due.
As regards the pledge, the Court reiterated that the downgrading of a claim to a subordinated status is compatible with a mortgage or pledge priority, but only where there are multiple creditors equally subordinated, amongst whom the security serves to determine the order of satisfaction. In the absence of such a plurality - which did not emerge in the present case from the findings on the merits - the issue of the alleged nullity of the deed of pledge is rendered moot, since the security could not in any event alter the unenforceability of the subordinated claim compared to those of the other company creditors.
This ruling forms part of the established line of case law on the interpretation of article 2467 of the Italian Civil Code, extending its objective scope of application to include the omissive conduct of a shareholder-lessor who, being aware of the excessive imbalance in the tenant company’s debt position, systematically fails to demand payment of the rent due. From this perspective, subordination serves as a means of safeguarding the principle of par condicio creditorum.