The enduring debate on claims made clauses in Italian Case Law: Recent developments and diverging interpretations

The Foundational Rulings of the Joint Sections (2016–2018)

It's now well established that the Court of Cassation broadly recognises the legitimacy of claims made clauses. As early as 2016, the Joint Sections of the Supreme Court confirmed that the clauses are valid and not inherently unfair, if they're drafted in clear and intelligible terms and are deemed worthy of legal protection under Article 1322, paragraph 2 of the Italian Civil Code – namely, where they pursue a legitimate socio-economic interest.

In 2018, the Joint Sections further reinforced this position by recognizing the claims made clause as a “typical” contractual provision, subject to scrutiny under the doctrine of causa concreta (concrete cause) pursuant to Article 1322, paragraph 1 of the Civil Code.

 

A temporary deviation: The isolated precedent of 2020

The Supreme Court has consistently reaffirmed these principles over the years, albeit with occasional exceptions. A notable deviation occurred in Judgment No. 8894 of 13 May 2020, in which the court held that the claims made clause was invalid. The reasoning was that it imposed a forfeiture on the insured based solely on the conduct of the third-party claimant – namely, the filing of a claim for damages – which could occur long after the underlying wrongful act. As such, the clause was found to unduly hinder the insured’s ability to exercise their right to indemnity, in violation of Article 2965 of the Civil Code, which renders null and void any clause that imposes a forfeiture period making it excessively difficult for one party to assert their rights.

But this interpretation has been expressly rejected by subsequent Supreme Court rulings. In particular, the court has clarified that the claims made clause does not constitute a conventional forfeiture clause falling within the scope of Article 2965. Rather, the third-party claim is to be regarded as an essential component of the insured risk itself – an integral element in defining the scope of coverage (See Cass. Civ., Order No. 5165/2024).

This position was reaffirmed in Cass. Civ., Section III, Order No. 7890/2025, which explicitly stated: “Judgment No. 8894 of 2020 represents an isolated precedent and is inconsistent with the principles established by the Joint Sections concerning claims made clauses. It must therefore be disregarded.”

 

The June 2025 Decision: Sunset clauses and validity

The legal debate surrounding the validity of claims made clauses continues. As recently as June 2025, the Supreme Court addressed the issue once again in Order No. 15447 of 10 June 2025, ruling that the absence of a sunset clause (ie an extended reporting period) does not, in itself, render the clause invalid. The court reiterated that the validity of these clauses must be assessed in light of the concrete cause of the contract, taking into account the legitimate interests pursued by the parties.

 

Diverging interpretations in the lower courts

This debate also continues to play out in the lower courts. On one side, courts such as the Court of Milan have generally aligned with the Supreme Court’s prevailing jurisprudence, upholding the enforceability of claims made clauses. On the other side, some courts have adopted a more restrictive stance.

Two notable examples are the decisions of the Court of Rome issued in April 2023 and July 2024. In both cases, the court declined to apply the claims made clause and rejected the insurers’ objections. The reasoning was that the clause conferred an unjust and disproportionate advantage on the insurer, without any corresponding benefit for the insured. Specifically, the court found that the clause made the insurer’s obligation to indemnify contingent upon the will of the third-party claimant – namely, the timing of the claim – which could occur long after the wrongful act. As such, the clause was deemed unworthy of legal protection.

 

Conclusion – The claims made clause is still a focal point of insurance litigation in Italy

The jurisprudential trajectory of claims made clauses in Italy reflects a complex and evolving legal landscape. While the Supreme Court has, over time, consolidated a generally favourable stance – recognising the clause’s typical nature and its compatibility with the principles of contractual autonomy and risk delimitation – occasional divergences, particularly at the level of trial courts, continue to fuel legal uncertainty.

The persistence of conflicting rulings, especially from courts of first instance, underscores the need for continued doctrinal and judicial clarification. In particular, the tension between the protection of the insured’s rights and the legitimate interests of insurers in defining the scope of coverage remains a central issue.

Until a more uniform and stable interpretative framework is achieved – possibly through further intervention by the Joint Sections or legislative action – the claims made clause will likely remain a focal point of insurance litigation in Italy.