L’art. 1201 c.c. prevede che: “il creditore, ricevendo il pagamento da un terzo può surrogarlo nei propri diritti. La surrogazione deve essere fatta in modo espresso e contemporaneamente al pagamento”.
Ai sensi dell’art. 1201 c.c. la surrogazione può avvenire per volontà del creditore quanto questi riceve il pagamento da un terzo, che paga in proprio e non quale rappresentante o delegato del debitore.
In ambito bancario, la banca dichiara espressamente di eseguire il pagamento in forza di un mandato irrevocabile di pagamento: “Vi comunichiamo la nostra conferma di pagamento…in virtù di mandato irrevocabile conferitoci da (contraente)”.
La banca, quindi, esegue il pagamento in qualità di mandataria e l’unico soggetto obbligato al pagamento nei confronti del creditore resta il debitore non avendo la banca specificato di aver assunto alcun impegno o vincolo obbligatorio nei confronti del terzo.
Il mandato irrevocabile di pagamento non instaura un rapporto obbligazionario fra il terzo e la mandataria (banca) né tantomeno il creditore potrebbe agire nei confronti della banca in caso di inadempimento del debitore.
La Corte d’appello Milano sul punto ha precisato che il mandato irrevocabile di pagamento nell’interesse del terzo, non fa sorgere alcun diritto in capo al terzo, né pone la mandataria Banca nella posizione di garante dell’adempimento dell’obbligazione fra le due Società (Cfr Corte d’appello Milano sez. III, 24/07/2017, n. 3457); ed ancora: “ il mandato irrevocabile nell’interesse del terzo, di cui all’ art. 1723, secondo comma, cod. civ. , – il quale concreta un contratto bilaterale e sinallagmatico, in cui il terzo, che ne è estraneo, non ha azione diretta contro le parti contraenti per la mancata realizzazione del suo interesse – si distingue dal mandato irrevocabile in favore del terzo, nel quale è inserita una clausola, o patto d’obbligo, in base alla quale il terzo è titolare del diritto soggettivo all’adempimento di tale obbligo, nei confronti del soggetto o dei soggetti obbligati ( Cass. 8343/1995, confermata da Cass. n. 5983/99).
Tuttavia, in caso di fallimento del debitore il pagamento ricevuto dalla banca in taluni casi potrebbe essere soggetto a revocatoria: “Il pagamento effettuato dal terzo è revocabile solo ove venga offerta la prova della diretta incidenza dello stesso sul patrimonio della fallita”. Tribunale Rovigo, 09/11/2018, n.783; ed ancora: “La revocatoria fallimentare del pagamento di debiti del fallito ex art. 67 L.fall. è esperibile anche quando il pagamento sia stato effettuato da un terzo, purché questi abbia pagato il debito con danaro dell’imprenditore poi fallito, ovvero con danaro proprio”. Tribunale Arezzo, 16/07/2018, n.760.
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