The Italian Supreme Court, with its judgment no. 11574 dated 14 May 2013 has established that whoever brings an action for the repayment of a loan must not only prove that it has handed over such amount to the alleged debtor, but also that it has title to request that such amount should be repaid.
The Supreme Court ruled, in the aforementioned judgment, on the basis of a consolidated body of case law to the effect that whoever brings an action – as in the present case – requesting payment on the basis of a loan agreement, is required to prove all the constituent elements of the contract and, therefore, not only the successful delivery of the loaned sum to the debtor but also the title upon which such amount was delivered that gives rise to the obligation to repay such amount. It is only in this manner that the burden of proving that the plaintiff is owed an amount can be deemed to have been discharged pursuant to article 2697 of the Italian Civil Code (cfr. Italian Supreme Court judgment no. 5691 dated September 26, 1983, Italian Supreme Court judgment no. 3056 May 17, 1982; Italian Supreme Court judgment no. 2062 dated April 3, 1982; Italian Supreme Court judgment no. 267 dated January 19, 1977).
Moreover, the Italian Supreme Court has also clarified the fact that, in the event that the defendant disputes having to return such an amount, the plaintiff will have to demonstrate in full all of the element of such claim, which shall extend to providing evidence of the legal title giving rise an obligation on the part of the defendant to return such amount. The submission of a different claim by the defendant, on the other hand, will not – insofar as it is not a substantive defense – reverse the burden of proof (cfr. Italian Supreme Court judgment no. 9451/2010).
It follows therefrom that whoever sues for the repayment of loaned amounts necessarily has to prove the title on which the claim for repayment is based, except for the (rare) case in which the defendant admits that he owes such amount.
