The Primacy of Substance over Form and the Accounting of Scriptural Money
Notes on Italian Court of Cassation Order no. 27715/2026
by Marco Saba
Abstract
Italian Court of Cassation Order no. 27715/2026, in rejecting a claim for a finder’s reward on unrecorded scriptural money, stated that the bank “had never lost awareness of the location” of the money created. This paper reverses that statement in light of the principle of substance over form (Article 2423-bis, paragraph 1, no. 1-bis, of the Italian Civil Code), the true and fair view override (Article 2423, paragraphs 4-5, of the Civil Code), the IASB Conceptual Framework, and the European supervisory framework. It argues that the systematic classification of originated deposits as mere liabilities constitutes a choice of form that current accounting law requires to be justified, and that such justification has never been provided or requested by supervisory authorities. The paper draws on Biagio Bossone’s studies on commercial bank seigniorage and highlights the judicial asymmetry between authorised and non-authorised entities in the creation of scriptural money.
1. Introduction
Court of Cassation, First Civil Section, Order no. 27715 of 24 October 2026, held that scriptural money not recorded in the balance sheet cannot be the object of loss and recovery under Articles 927 et seq. of the Civil Code. The Court reasoned that the bank, “even if one were to characterise the conduct denounced by the claimant as ‘concealment’”, had maintained “full and constant awareness of the location” of the money within the balance sheet. The reasoning is formally consistent with the notion of loss. It leaves open, however, a question the Order does not address: whether that “location” complies with the principle of substance over form and the obligation of true and fair representation.
2. The principle and its banking origin
Article 2423-bis, paragraph 1, no. 1-bis, of the Italian Civil Code, as amended by Legislative Decree 139/2015, provides that “the recognition and presentation of items shall be made taking into account the substance of the transaction or contract”. The provision is not marginal. The Court of Cassation has qualified it as a general closing clause of the system, capable of operating even in derogation of special rules when these conflict with true and fair representation.
The historical record is decisive. The Explanatory Report to Legislative Decree 6/2003 states that the primacy of substance over form was “already present in Legislative Decree no. 87 of 1992 governing bank financial statements”, implementing EEC Directive 86/635 on the annual accounts of banks. The principle was not imported into bank accounting from general company law: it originated in bank accounting and was later generalised. Banks are the sector of origin of the rule, not its occasional object. This origin makes the obligation to apply the principle to typical banking operations particularly stringent.
3. The override clause and its non-use
Article 2423, paragraphs 4 and 5, of the Civil Code provides that, in exceptional cases, if the application of a provision is incompatible with the true and fair representation of the financial position and results, the provision shall not be applied, with an obligation to disclose the reasons in the notes and to allocate any resulting profits to a non-distributable reserve. This is the true and fair view override.
No Italian bank has ever used this clause for the accounting of scriptural money originated through credit extension. The omission is not neutral. If, as the Court of Cassation stated, the representative bodies maintained full awareness of the location of the created money, and if that location did not correspond to the economic substance of the transaction, the Code required a reasoned derogation. Accounting silence is a documentable choice, not a technical inevitability. The absence of any disclosure in the notes is, in itself, a relevant factual element for assessing directors’ diligence (Article 2392 of the Civil Code).
4. The international framework and European supervision
For banks preparing financial statements under IAS/IFRS, the IASB Conceptual Framework (2018, paras. 2.12 and BC2.27) has explicitly reintroduced the reference to substance over legal form. Faithful representation concerns “the substance of an economic phenomenon rather than its legal form”.
The convergence is therefore threefold: Civil Code, derived banking law (Legislative Decree 87/1992), and international standards. To these is added the supervisory framework. In its reply of 12 October 2026 on FINREP, the EBA acknowledged the conceptual distinction between “collected” and “originated” deposits, while stating that the supervisory reporting framework does not currently require such a distinction. The EBA letter confirms that the origin of a deposit is potentially relevant information, at least for resolution and depositor information purposes, and that its absence from reporting does not equate to substantive irrelevance.
5. Classification and substance: double-entry and bank seigniorage
Double-entry accounting of a loan records a receivable from the customer on the asset side and a deposit on the liability side. Under current standards (IFRS 9 and Bank of Italy Circular no. 262/2005) this entry is formally correct. It does not, however, resolve the substance issue. If the transaction consists in the creation of purchasing power ex nihilo, classifying it entirely as a debt means applying the form of a deposit contract to a substance that is not the transfer of pre-existing money.
Article 2423-bis, no. 1-bis, requires the opposite: substance must prevail over form. The criticism is not that an item is missing from the balance sheet. It is that the systematic classification as a liability conceals the substance of the transaction. In this formulation the primacy of substance works in favour of the criticism, not against it.
This reading is supported by Biagio Bossone’s studies on commercial bank seigniorage. Bossone (2021) analysed the rent-extraction power of commercial banks arising from money creation, distinguishing it from profits of pure financial intermediation. In Commercial bank seigniorage and the macroeconomy (International Review of Financial Analysis, 2021) and the working paper Bank Seigniorage in a Monetary Production Economy (PKES, 2021), Bossone shows how banks’ capacity to create demand deposits, combined with their position in the payment system, enables them to extract seigniorage from the economy. In the studies on the Accounting View of Money (with Massimo Costa), Bossone further argues that a portion of bank money does not constitute debt in the proper sense and should be treated as equity of the issuer, with consequent recognition of seigniorage. The economic literature on money creation (McLeay, Radia & Thomas, 2014; Werner, 2014; Jakab & Kumhof, 2015) converges on this point. Accounting law has not yet translated this evidence into a distinct representation.
6. Seigniorage, reservation of public function, and judicial asymmetry
The power to create money is historically and constitutionally an attribute of sovereignty. Article 117, paragraph 2, letter e), of the Italian Constitution reserves exclusive competence over currency to the State. Article 127 TFEU entrusts the ECB and national central banks with the task of issuing banknotes, while the creation of scriptural money by commercial banks takes place within an authorisation framework (Consolidated Banking Act and European rules) that permits deposit-taking and lending, but contains no explicit mandate to extract seigniorage nor any rule governing its destination.
This tension has also been highlighted at the level of contractual qualification. Article 1813 of the Civil Code defines a loan as the contract whereby one party delivers to the other a determined quantity of money or other fungible things. Article 1834 provides that in deposits of money with a bank the bank acquires ownership. In practice, however, the credit entry on an account does not constitute delivery of pre-existing money nor transfer of ownership of already existing money: it is the creation itself of the means of payment. The form of the loan and of the deposit does not correspond to the substance of the transaction.
A judicial asymmetry follows. On the one hand, Italian courts have repeatedly denied non-bank private parties the possibility of creating or circulating scriptural means of payment, even when they had correctly accounted for the operation as a cash inflow. In several cases the reservation of public function was invoked and, in some, Article 347 of the Criminal Code (usurpation of public functions). On the other hand, authorised banks are permitted to create deposits, yet a accounting representation that does not disclose the income from creation—classifying it entirely as a liability—is accepted.
If the substance of the transaction is the creation of purchasing power, the reservation of activity in favour of authorised entities should be accompanied by an obligation of accounting representation consistent with that substance. The current arrangement produces the opposite result: creation is prohibited to non-authorised parties (even if correctly accounted for) and authorised parties are allowed an accounting treatment that conceals its economic effect. The principle of substance over form does not justify this asymmetry. As observed in analyses of judicial practice, there exists a nominal legal order and a real legal order; judges mediate between the two in order to preserve the appearance of legitimacy of the system.
7. Implications for directors’ liability and supervision
The failure to apply the override clause and the absence of any disclosure on the classification of originated deposits raise issues of directors’ liability under Article 2392 of the Civil Code. The awareness of the “location” affirmed by the Court of Cassation makes it more difficult to invoke excusable ignorance. On the supervisory side, the EBA letter of 2026 opens a policy space: if the origin of the deposit is relevant for resolution and for depositors, the absence of a distinct reporting item limits the “comprehensive view of risk profiles” required by Article 430 CRR. Bossone’s studies reinforce the argument: if bank seigniorage is a quantitatively relevant phenomenon, its non-recognition in the accounts is not neutral either for shareholders or for the public finances.
8. Conclusion
Order no. 27715/2026 used the awareness of the representative bodies to exclude loss. It did not address whether that awareness translated into a representation consistent with the principle of substance over form. The legislator has provided the tools (Article 2423-bis, the override clause, the IASB Conceptual Framework). The banking system has never used them for originated scriptural money, and the supervisory authorities have never required their use. The question that remains open is not “where did the money go?”, but “why has the substance of the credit transaction never been represented as such, despite converging normative sources requiring it, and why does the legal system allow authorised entities an accounting treatment that conceals what it prohibits non-authorised entities from doing transparently?”.
Notes
- Article 2423-bis, paragraph 1, no. 1-bis, Italian Civil Code, as amended by Article 5 of Legislative Decree 18 August 2015, no. 139.
- Explanatory Report to Legislative Decree 17 January 2003, no. 6.
- Article 2423, paragraphs 4-5, Italian Civil Code.
- IASB, Conceptual Framework for Financial Reporting (2018), paras. 2.12 and BC2.27.
- Court of Cassation, First Civil Section, Order 24 October 2026, no. 27715.
- Legislative Decree 27 January 1992, no. 87.
- Bank of Italy, Circular no. 262/2005 and subsequent amendments.
- EBA, reply on FINREP, 12 October 2026.
- McLeay, Radia & Thomas, “Money creation in the modern economy”, Bank of England Quarterly Bulletin, 2014 Q1.
- Werner, “Can banks individually create money out of nothing?”, International Review of Financial Analysis, 2014.
- Jakab & Kumhof, “Banks are not intermediaries of loanable funds”, IMF Working Paper WP/15/2015.
- Bossone, B., “Commercial bank seigniorage and the macroeconomy”, International Review of Financial Analysis, 2021, vol. 76, 101775.
- Bossone, B., “Bank Seigniorage in a Monetary Production Economy”, PKES Working Paper 2111, August 2021.
- Bossone, B. & Costa, M., studies on the Accounting View of Money.
- Article 117, paragraph 2, letter e), Italian Constitution.
- Article 127 TFEU; Articles 1813 and 1834 Italian Civil Code; Article 347 Italian Criminal Code.
- Della Luna, M, “Giudici tra banca e legalità”, Florence, 28 September 2018.
EBA Answer - October 17, 2026
EBA Regular Use
Dear Marco Saba,
Thank you very much for your mail and for the opportunity to clarify the scope and purposes of FINREP framework.
FINREP is a supervisory financial reporting framework built on the accounting rules and applicable to institutions at consolidate level. Its purpose, as set out in Article 430 of the CRR, is to provide Competent Authorities with the information necessary to obtain a comprehensive view of institutions’ risk profiles and of systemic risks.
Within these objectives, FINREP does not require a distinction between collected deposits and originated deposits. While the origin of a deposit may indeed be valuable and relevant information for depositors, this is not the focus of the supervisory financial reporting framework.
The broader question of whether the origin of a deposit should matter for bail-in or for the information available to depositors is a substantive resolution-policy matter. It relates to the treatment and ranking of liabilities in resolution and therefore goes beyond the scope and purposes of FINREP.
I hope this helps clarify your points.
Kind regards,
EBA INFO
ANNEX 2
Follow-up of October 17, 2026 and request for clarification
Subject: Follow-up — FINREP clarification and the treatment of deposit origin under resolution and depositor information rules
Dear EBA INFO,
Thank you for your clear and timely response of 12/X/2026 regarding the scope of the FINREP framework.
I understand and take note of the following points:
- FINREP is a supervisory financial reporting framework based on applicable accounting rules, applied at consolidated level, whose purpose under Article 430 of the CRR is to provide competent authorities with the information necessary to obtain a comprehensive view of institutions’ risk profiles and of systemic risks.
- Within that purpose, FINREP does not require a distinction between collected deposits and originated deposits.
- While the origin of a deposit may be relevant information for depositors, it is not the focus of the supervisory financial reporting framework.
- The question of whether the origin of a deposit should matter for bail-in or for the information available to depositors is a substantive resolution-policy matter relating to the treatment and ranking of liabilities in resolution, and therefore lies beyond the scope of FINREP.
Having noted this clarification, I would be grateful for your guidance on the following points, which follow directly from the distinction you have drawn:
Resolution framework (BRRD and related rules)
Under the current resolution regime, do competent authorities or resolution authorities consider the origin of a deposit (i.e., whether it represents the transfer of pre-existing funds or a liability originated by the institution itself through credit creation) relevant for:
- the ranking of the liability in insolvency or resolution;
- its eligibility for bail-in; or
- any other aspect of its treatment in resolution?
If the origin is currently irrelevant under the applicable rules, could you indicate the legal basis for that approach?
Information available to depositors
Beyond FINREP, is there any requirement (under CRR/CRD, BRRD, or related conduct or disclosure rules) that institutions inform depositors of the nature or origin of the claim they hold against the institution?
If no such requirement exists, is this a matter that falls under the responsibility of national competent authorities, the Single Resolution Board, or another body?
Supervisory relevance
In the view of the EBA, does the absence of a collected/originated distinction in the supervisory reporting framework limit, in any material respect, the ability of competent authorities to form the “comprehensive view of institutions’ risk profiles and of systemic risks” contemplated by Article 430 CRR, particularly in the context of resolution planning or the assessment of loss-absorption capacity?
I am seeking only to understand the current legal and supervisory architecture as it stands, and to identify the appropriate framework within which the origin of deposit liabilities is (or is not) taken into account.
Thank you again for your assistance. I remain available for any further clarification that may be useful.
Kind regards,
Marco Saba
Roma, Italy




