La Cassazione, i derivati e la lezione dimenticata di Cesare Vivante

In a recent decision, the Court of Cassation confirmed the approach to over-the-counter derivatives offered by the ruling en banc in the Cattolica case. By doing so, the Supreme Court laid the groundwork for serial litigations that could significantly affect banks’ capital requirements and the international credibility of the Italian legal system. This paper critically discusses the basis of the approach adopted by the Court of Cassation, arguing from the discrepancy between theoretical reconstruction and economic matter. As an alternative, this paper proposes a solution that is more respectful of the economic reality and more capable of considering the concrete circumstances of each case.