Protection measures

Safe-deposit boxes burgled, the bank is responsible for the failure of controls

He is obliged to protect the integrity of the containers and preserve them from theft or damage. The mitigating factor of 'unforeseeable circumstances' does not apply to theft

by Angelo Busani

21 April 2026

3' min read

Translated by AI

Versione italiana

3' min read

Translated by AI

Versione italiana

If a safe-deposit box is emptied as a result of theft, the bank shall be liable to the customer for not complying with its obligation to ensure the integrity of the metal containers placed in protected premises and made available to customers for the safekeeping of moveable assets (money, jewellery, precious metals, documents, etc.) and to protect them from theft or damage in a context of a higher degree of security.) and preserve them from subtraction or damage in a context characterised by a higher degree of security than that which ordinarily exists in a domestic or professional environment (Supreme Court, 9640/1999).

The limit of the fortuitous case

Article 1839 of the Civil Code states, in fact, that in the service of safe-deposit boxes, the bank is liable to the customer 'for the suitability and safekeeping of the premises and for the integrity of the box, except in the case of unforeseeable circumstances'.

The concept of "fortuitous event" does not include theft, unless it is carried out in such a destructive and sophisticated manner that it cannot be tackled even with technologically advanced security measures (Supreme Court, 5421/1992 and 4946/2001): for the fortuitous event to occur, therefore, there must be an unforeseeable and unavoidable prejudicial event (Supreme Court, 8065/1997), such as an earthquake in an area with a low seismic risk or a flood in an area where there is no memory of extreme weather events.

Since the law places the onus on the bank to ensure the suitability and safekeeping of the premises as well as the integrity of the box, it is not sufficient for the bank to prove that it has taken determined precautions or acted with diligence: to free itself from liability the bank must prove the occurrence of a situation completely outside its sphere of control (Supreme Court, 7081/2005).

The burden of proof is on the bank

Precisely because the service of safe-deposit boxes is intended to prevent the risk of theft of the assets placed in them, case law therefore excludes that theft can be qualified as a fortuitous event (Supreme Court, 3389/2003 and 23412/2009). The proof of the existence of security measures or of their compliance with current standards is therefore not sufficient: in order to be exempt from liability, the bank must prove that the event occurred despite the adoption of all the precautions that are required in concrete terms and that it would not have been avoidable even with a more efficient organisation (Supreme Court, 9640/1999).

This burden of proof rests entirely on the bank, which is called upon to provide positive proof of the contingency. Failing this, non-performance is presumed, in view of the fact that the performance falls within its sphere of control (Supreme Court, 5421/1992 and 8065/1997). Nor can the conduct of the customer, who is not obliged to inform the bank of the contents of the box nor can he be held co-responsible for having placed high value goods therein, be relevant for the purposes of exemption from liability (Supreme Court, 5617/1992 and 14462/2004).

The compensable damage

As to the compensable damage (the demonstration of which is the responsibility of the customer), it coincides with the value of the stolen or damaged assets, as an immediate and direct consequence of the bank's breach of its duty of safekeeping (Supreme Court, 2067/1995). However, the special nature of the safe deposit box service, characterised by the fact that the bank knows nothing about their contents, has an impact on the manner of ascertaining the damage: in this context, case law therefore admits the use of simple presumptions, witness statements and other circumstantial elements (Court of Cassation, 18637/2017), such as complaints submitted to the police, capable of providing a reliable picture of the existence and extent of the assets in safekeeping.

Alongside these instruments, the possibility of using estimatory and suppletory oaths is recognised, provided that there is a suitable principle of proof to substantiate the claim (Supreme Court Cases 1355/1998 and 2393/1998). These instruments take on particular importance precisely because of the physiological absence of direct documentation on the contents of the cassette, allowing the judge to arrive at a reliable reconstruction by means of mutually convergent and consistent circumstantial elements.

In the same vein, statements made out of court and indirect documentary evidence which, while not offering full proof, contribute to forming the judge's conviction as to the existence of the harm complained of may also be relevant. Finally, the court may proceed to an equitable assessment of the harm, taking into account the circumstances of the specific case.