учебный год 2023 / Van Erp, Accessority of Suretyship

stringent provisions on consumer credit law in the light of new developments in consumer credit transactions.31 This freedom would not longer exist after maximum harmonisation. Nevertheless, it should always be realised that European private law will never completely replace the private law of the member states. No directive or regulation, including a directive or regulation aimed at maximum harmonisation, will be exhaustive, covering all legal questions related to the field that is harmonised or unified. This would require a complete harmonisation of civil and commercial law. The European Commission, however, has made it clear that even after a Common Frame of Reference – aimed at restructuring the existing acquis communautaire and creating a toolkit for further development of European private law – has been drafted and published, full harmonisation or unification is not part of the Commission’s legislative programme.32 It is more realistic to expect a growing osmosis between national and European private law, even if a European instrument is aimed at maximum harmonisation.33

With respect to surety agreements it is to be expected that both the national rules of contract law as well as the accessority principle, which is generally applied with regard to surety agreements, will remain important. I therefore advocate a multi-level remedial approach. Protection to consumers should, first of all, be given both at a European as well as at a national level. This is unavoidable, as long as the members state each have their own private law and European private law will not be exhaustive. The European Commission has indicated, as already mentioned, that a European Civil Code will not be enacted. It will, however, be considered whether a socalled ‘optional model’, to be built upon the Common Frame of Reference, can be drafted. If this will be an ‘opt in’ model, it will have to be chosen by the parties to a contract, who can also deviate from the model and adapt it to their needs. This means that the national legal systems still have an important role to play, as these systems will still provide the default rules also for cross-border contracts. Consequently, one aspect of a multi-level remedial approach is the interaction between European and national private law. Another aspect of such a multi-level remedial approach, aimed at reaching a fair balance of interests, concerns the various categories of parties

31Cf. European Commission, Health & consumer protection directorate-general, Directorate B – Consumer Affairs, B5 – Financial services, Discussion paper for the amendment of Directive 87/102/EEC concerning consumer credit (no date of publication mentioned), to be found at: <http://europa.eu.int/comm/consumers/cons_int/fina_serv/cons_directive/index_en.htm>.

32See for the work on the Common Frame of Reference: <http://europa.eu.int/comm/consumers/ cons_int/safe_shop/fair_bus_pract/cont_law/index_en.htm>. See for comments on the Common Frame of Reference: C. VON BAR, ‘Der Gemeinsame Referenzrahmen’, Zeitschrift fúr Gemeinschaftsprivatrecht 2005, p 1, M. SCHMIDT-KESSEL, ‘Auf dem Weg zum Gemeinsamen Referenzrahmen: Anmerkungen zur Mitteilung der Kommission vom 11. Oktober 2004’,

Zeitschrift für Gemeinschaftsprivatrecht 2005, p 2 et seq.

33See J.H.M. VAN ERP, ‘De osmose van Nederlands en Europees goederenrecht’, Nederlands Tijdschrift voor Burgerlijk Recht 2004, p 533 et seq.

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involved.34 I will focus on the position of the surety and the possible role of the accessority principle. A distinction should be made between contracts concluded by (1) professional principal creditors with professional sureties, (2) professional principal creditors with non-professional sureties where the principal debtor is a professional and (3) professional principal creditors with non-professional sureties where the principal debtor is also a non-professional.35 I can be brief with regard to the first mentioned group. If parties negotiate at arm’s length, it is up to them to decide how their legal relationship will be given shape. Their relationship is characterised by more equal bargaining strength as can be found in the other two groups of cases, although I should add that perhaps a further distinction should be made between professional sureties who are large business enterprises and professional sureties who are small and medium sized businesses. The latter category might also be in some need of protection, not unlike non-professional sureties, because the bargaining strength of small and medium sized businesses might be small compared to principal creditors such as banks and other large financial institutions.

With respect to the last two groups of cases, the main difference is that in category (2) the principal debtor is a professional and in category (3) a non-professional. In both cases I would advocate an approach focussing on the status of the surety as a non-professional, disregarding the status of the principal debtor. In both cases the secondary obligation of the surety should be accessory to the primary obligation, which has to be performed by the principal debtor. In the relationship between a principal creditor and a non-professional surety the accessority principle gives adequate protection to sureties. The advantages of the principle, as described above, are not counterbalanced by the disadvantages. A non-professional surety’s liability should be limited to the amount of the primary obligation as laid down in the agreement between principal creditor and principal debtor. The amount of liability should be foreseeable, also to prevent financial overburdening of consumers. Waiver clauses aimed at abolishing or limiting accessority should be null and void as being a violation of public policy, given the potentially enormous financial consequences of a

34Cf. J. DREXL, ‘Der Bürge als deutscher und europäischer Verbraucher’, JZ 1998, p 1046 et seq. See also for U.S. law, commenting upon the new Restatement of the Law Third, Suretyship and Guarantee, American Law Institute Publishers, St. Paul, Minn., 1996, N.B. COHEN, ‘Striking the balance: the evolving nature of suretyship defenses’, William and Mary Law Review 1993, p 1025 et seq. and B.E. LEWIS, ‘Secondary obligors and the restatement third of suretyship and guaranty: for love or money’, Brooklyn Law Review 1997, p 861 et seq. Under Dutch law in case of a so-called ‘particuliere borgtocht’ (private suretyship) special, mandatory, rules apply. See articles 7:857 et seq. Neth. C.C. and ASSER-VAN SCHAICK, p 181 et seq.

35I leave out the alternative that the suretyship agreement is concluded between two non-profes- sional parties. Also in such a case the non-professional surety needs protection, at least by giving him a mandatory right to information. These types of surety agreements, however, are not as frequently concluded as the types mentioned in the main text.

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surety agreement that is no longer limited to a specifically defined primary obligation. In case the primary obligation has been formulated in abstract terms, this will de facto limit any protective impact of the accessority principle and should therefore also be declared null and void. Both such waiver clauses and abstract debts change the nature of the agreement to such a degree that it might even be asked, if the agreement still can be qualified as a surety contract. This might lead to a practice according to which surety agreements are no longer concluded and are replaced by abstract guarantees. To block this development it should be considered to include a provision in the draft consumer directive that any agreement, which essentially is a surety contract, should be considered as such. Consumer protection should not depend upon the choice of form. This result could also be reached by including accessory-like mandatory clauses in any agreement by which a non-professional third party promises to pay someone else’s debt in case of that latter person’s non-performance.

Application of the accessority principle is a common feature of surety law, which can be found in European national legal systems and is – to some degree at least

– recognised in the case law developed by the European Court of Justice. In my view it should be a substantive part of the new consumer credit directive. Of course, the surety will need to be informed about the consequences of the surety agreement. A regime of mandatory law, demanding that certain minimum information (e.g. concerning the amount of the debt) is given to the surety before the conclusion of the surety agreement, is in my view the absolute minimum protection a surety must be offered. A surety should furthermore also be entitled to certain information after the conclusion of the contract, e.g., about non-performance of the primary obligation. Default notices sent to the principal debtor are a good example. The surety should know about such a default notice. It should not come as a surprise to the surety that the principal creditor is demanding payment from him. This is, however, not enough. Application of the accessority principle will be a substantive addition to the required level of protection, given that it connects the primary and the secondary obligation and thus limits the liability of the surety in an effective way.

The multi-level remedial approach towards protection of the interests of sureties will strengthen the position of non-professional sureties adequately, taking into account the interests of principal creditors, principal debtors and sureties. Both European and national contract law and to some degree property law can play a role here. Contract law, by imposing mandatory information duties upon the principal creditor vis-à-vis also the surety and by discarding clauses aimed at making the primary obligation abstract. Property law plays an – albeit indirect – role through the application of the accessority principle. The status of the parties involved should be considered carefully. Between professional parties a mandatory undiscriminating application of, e.g., the accessority principle might be seen as paternalistic and unnecessary. However, with respect to non-professional sureties this will be very different, given the inequality of bargaining power between these sureties and professional principal creditors.

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