учебный год 2023 / de la Mata Munoz, Personal Security

manifestations that can be understood as express or explicit in relation to the assumption of a guarantee obligation is a matter of interpretation. Gesture and other kinds of traditional communication signs have been understood as possible ways of explicit manifestation152. These are very much dependent on the behaviour, practice and habits of the place and community153 in which these forms of communication have occurred. All the alternative ways to express consent must be clear enough to be considered explicit. Therefore, in order to avoid difficulties and to assist proof and security, the written form is not only generally but uniquely used in practice154.

(y) Compulsory writtenformfor commercial guarantees in Spain

Art. 440 Comm.C. requires the written form for commercial guarantees155 (art. 439-442 Spanish Comm.C.). This provision is rather surprising and its legal reasoning is not clear156. However, since in practice almost every guarantee (civil and commercial) is agreed in writing, scholars have not questioned this principle and case law has always required written form for the validity of commercial guarantees157.

(ii) Proofofthe constitution ofthe guarantee

The Italian Supreme Court has accepted that any form of proof may be admissible with regard to a guarantee158. This is inclusive of presumptive proof, i.e. the will of the guarantor must be express but the proof of this express manifestation might be of a presumptive nature 159. It thus falls to

152Aru/D 'Amelio e Finzi, 389.

153Cass. 14 July 1936 no. 2485, FI 1937, I, 38; Bo, Note sulla forma della fideisussione, 321 ff.

154In exceptional instances case Law has also required a written form of conclusion for the guarantee: Cass. 21May1942 no. 1379, FI, Rep. 1942, voce Fideiussione, 545.

155Art. 439 Comm.C.: ,,Seni reputado mercantil todo afianzamiento que tuviere por objeto asegurar el cumplimiento de un contrato mercantil, aun cuando el fiador no sea comerciante".

156Contrary to the Spanish regulation, § 350 German Comm.C as ammended of 13. July 2001, establishes the free form (Formfreiheit) for commercial guarantees in order to facilitate commercial transactions (§ 350 German Comm.C.: "Auf eine Biirgschaft, ein Schuldversprechen oder ein Schuldanerkenntnis finden, sofem die Biirgschaft auf der Seite des Burgen, das Versprechen oder das Anerkenntnis auf der Seite des Schuldners

ein Handelsgeschaft ist, die Formvorschriften des § 766 Satz 1 und 2, des § 780 und des § 781 Satz 1 und 2 des Biirgerlichen Gesetzbuchs keine Anwendung").

157STS 30 November 3005 [RA 2005 no. 7742].

158Cass. 9 September 1998 no. 8922, FI 1998 no. 21; Cass. 17 October 1992 no 11413, GI, 1994, I, 1, 1649. Giusti, 93.

159Cass. 17 October 1992 no. 11413, GI 1994, I, 1, 1649; Cass. 2 August 1984 no. 4600, GI, 1985, I, 1, 382; Cass. 16 January 1976, no. 150, FI, Rep. 1976, voce Fideius-

the judge to arbitrate as to the existence of the guarantee on the basis of evidence from which the intention of the guarantor can be determined. 160

bb) The creditor's offer

Normally the offer to guarantee is made by the guarantor to the creditor. However, the creditor may also make an offer to the guarantor in order to create a contract of guarantee161 . In this sense, if, as it is common in practice, the creditor accepts an offer sent by the guarantor but introduces insignificant changes in it, is not considered a creditor's offer or counteroffer by Spanish courts162• It is considered that the creditor accepted the guarantor's offer as modified by the creditor. This is only the case if the changes do not worsen the guarantor's position. If otherwise, the modifications are not clearly insignificant and the guarantee is gratuitous, it is assumed that the creditor has accepted the terms of the offer as had been made by the guarantor and the creditor's counter-offer is only a proposal of change, which needs to be accepted by the guarantor.

In any case, it is sensible to obtain an answer from the guarantor to veri- fy the admission of the relevant terms. If the guarantee is of commercial nature, such written acceptance by the guarantor is necessary according to art. 440 Spanish Comm.C.

sione e mandato di credito, no. 5; Cass. 28 January 1972, no. 242, FI, Rep. 1972, voce Fideiussione e mandato di credito, no. 8; Cass. 10 November 1971 , no. 3214, FI, Rep. 1971, voce Fideiussione, no. 15; Cass. 26 June 1968, no. 2154, GC 1968, I, 1796; Cass. 26 June 1968 no. 2154, GC 1968, I, 1796; Cass. 20 June 1967 no. 1455, FI 1967 no.5; Cass. 12 March 1955 no. 748, GC 1955, I, 1106; Cass. 26 June 1968 no. 2154, GC 1968, I, 1796; Cass. October 1963 no. 2664 FI, 1964, I, 600. Biscontini/Perlingieri, 1574. Contra: Bianca, 475; Miccio, 527. Contra: Trib. Cassino, 24 March 1965, BBTC, 1965, II, 597. In Spain this is considered possible but not desirable, see Rey es, 221.

160 "La prova della fideiussione puo avvenire anche mediante presunzioni, purche queste portino al convincimento di una volonta espressa di malleveria" (Cass. 14 July 1936 no.2485, FI 1937, I, c.38). See also: Cass. 11 May 1973, no. 1271, FL, Rep. 1973, voce Fideiussione e mandato di credito, no. 7; Cass. 9 May 1972, no. 1402, FL, Rep. 1972, voce Contratto in genere, no. 150. On the testamentary proof: Cass. 7 March 1978, no. 1129, FI, Rep. 1978, voce Fideiussione e mandato di credito, no. 11; Cass. 9 May 1972, no. 1402, FI, Rep. 1972, voce Contratto in genere, no. 150.; Cass. 6 April 1971 , no. 999, FI, Rep. 1971, voce Fideiussione e mandato di credito, no. 12; Cass. 30 March 1971, no. 910, FL, no. 13; Cass. 21 November 1970, no. 2471, FI, no. 14; Cass. 19 May 1969, no. 1744, FI, Rep. 1969, voce Fideiussione e mandato di credito, no. 6.

161Art. 1829 Spanish CC foresees indirectly the creditor's offer when it refers to the case that the creditor has requested a specific guarantor.

162STS 3 November 1955 [RA 1955 no. 3564], Carrasco, Cordero and Marin , 105.

cc) Acceptance

(i) No needfor acceptance ofthe guarantee by the debtor

The contract of guarantee only exists between the creditor and the guarantor. The debtor is not a party to the contract and therefore his acceptance is not a requirement for the valid constitution of the guarantee (art. 1936 par. 2 Italian CC and art. 1823 par. 2 Spanish CC).

The debtor is present and sometimes plays, de facto, a very important role in the creation of the guarantee. He may formally commit himself to furnish the creditor with a guarantor and so enable the granting of the credit facility. Sometimes the guarantee contract only exists as a clause within the underlying contract for the provision of credit. But in all these cases the debtor remains outside the guarantee contract. That is the reason why a guarantee can also be validly created without the debtor being aware163 (art. 1936 par. 2 Italian cc and art. 1823 par. 2 Spanish CC164) and even despite his opposition thereto (art. 1823 par. 2 Spanish CC explicitly and art. 1936 par. 2 Italian CC shall be interpreted in the same way

(ii)Express acceptance ofthe guarantee by the creditor

(a)Is the creditor's express acceptance a constitutive requirement?

The creditor's acceptance is not expressly required by law for the valid constitution of the contract of guarantee either in Italy or in Spain166. Art. 1937 Italian CC clearly establishes that the only formal requisite for the constitution of a guarantee is the express will of the guarantor. The creditor's acceptance is hence not required for the creation of this contract in Italy. In Spain, art. 1827 CC does not use such clear terms. It demands the express constitution of the guarantee without clarifying whether this only relates to the guarantor's declaration of will or also to the express acceptance of the creditor. The ratio of these provisions is based on the traditional notion of guarantee as being a gratuitous contract (unilateral guarantee), by which the guarantor assumes obligations and risks without obtaining anything in return. The creditor is the beneficiary of the contract and the guarantor is the party deserving protection. Therefore, the wording of

163Following the Roman principle: "fideiusbere pro alio potest quisque, etiamsi promissor ignoret" (Digest 46, 1, 30).

164See also art. 2014 French CC.

165 The ratio for this provision is the function of the guarantee, i.e. the reinforcement of the creditor's right. The interests of the debtor are by contrast merely factual and not considered by the law (Cass. 12 April 1984 no. 2356, FI 1985, I, 2383 ; Cass. 12 April 1984 no. 2456, GC 1985, I, 466).

166 Giuliani/Franzoni, 940; Guilarte, 68.

art. 1827 CC should be interpreted as only requiring the express declaration of the guarantor for the valid constitution of a unilateral guarantee 167.

In the case of onerous guarantees, the creditor's acceptance is necessary as these are bilateral contracts that create obligations for creditor and guarantor. This acceptance might also be tacit or implicit168• The guarantor's will to accept is essential while notification of such will is not necessary169•

(/J) Legal effects ofthe creditor's acceptance ofthe guarantee

The creditor does not have to expressly accept the offer of a gratuitous guarantee. However if he does, this acceptance affects the moment of perfection of the guarantee. Italian and Spanish regulations present interesting differences on this point. In Spain a unilateral contract can be revoked until the moment at which the beneficiary declares his acceptance. In Italy awareness on the part of the beneficiary is sufficient to enable the perfection of the contract.

According to art. 1333 Italian CC a unilateral contract cannot be revoked once the beneficiary has received notice of the offer170• Moreover, the beneficiary is entitled to reject the offer within a reasonable period of time. This period is determined with regard to the nature of the contract and the common uses to which such a contract is put171 • Therefore, the non-acceptance by the creditor of a gratuitous guarantee does not result in any negative consequences for the creditor. The perfection of the contract takes place unless the creditor acts to reject the offer within a reasonable time.

In Spain, the active acceptance by the beneficiary is decisive for the perfection of the contract. A unilateral contract may always be revoked unless the beneficiary has actually expressed his acceptance 172• Therefore it is convenient to accept in practice either expressly or tacitly. No formalities are required for the validity of this acceptance 173• By way of exception

167See Reyes, 222.

168Santamaria, 861; Guilarte, 67, 11-12; Manresa, 238.

169STS 20 January 1999 [RA 1999 no. 3]; Carrasco, Cordero and Marin, 105; Santamaria, 861. In Germany there is a need of acceptance for the valid conclusion of

the contract (§ 151 CC) but such acceptance does not necessarily need to be notified. This is the case of guarantee because the creditor is beneficiary for the contract (BGH 12 October 1999, NJW 2000, 276). The implicit acceptance of the guarantee is also admitted in France (Simler, no. 933).

170A letter of confirmation from the creditor only serves to prove the extent of agreement which was already concluded at the moment at which the offer reached the creditor (Cass. 1 October 1993 no. 9777, GI, 1994, I, 1, 1536).

171Cass. 19 December 1987 no. 9468, GC, 1988, I, 971 (and BBTC 1989, II, 133).

172Guilarte, 67.

173Santamaria, 861; Guilarte, 67, 11-12.

acceptance by the creditor is unnecessary in some judicial and some other legal guarantees and also when the beneficiary is unknown.

2. Object ofthe guarantee

a) In general

The object of the guarantee is not to be fully identified with the object of the secured debt. Both are different obligations and each has its own contractually agreed elements, i.e. object, terms, conditions, legal cause (causa). However, the guarantee is an ancillary obligation, dependant on the secured debt. Due to the principle of co-extensiveness, the content of the guarantee is affected by the object of the secured debt.

As in the case of every other obligation, the guarantee needs to have a valid object (art. 1346 Italian CC and art. 1261 Spanish CC). As the law on guarantees does not establish any specific regulation on the object, the only relevant requirements are those which are established in the general law of obligations. A valid object must be possible, licit and determined or determinable. If the object of the guarantee is not possible, is illicit or it cannot be determined by any direct or indirect method, the guarantee is void. No restrictions have been introduced by Italian or Spanish law with regard to the kind of obligation that can be secured by a guarantee. According to general legal principles, it can be an obligation to provide something or to act or to refrain from acting in a particular fashion 174• Moreover, the nature of the guarantee obligation must not be the same as that of the principal debt. An obligation to do something could be guaranteed with an amount of money or vice versa. In practice, if the guaranteed obligation is a fungible item (for example, a sum of money), the guarantor's obligation generally consists in giving the creditor a tantumdem of that which he would have received had the principal debtor completed performance. If the debtor has partially fulfilled his obligation the object of the guarantor is accordingly reduced. The guarantor is therefore only liable for the part which has not been performed by the debtor.

If the guaranteed obligation is a so called non-fungible obligation (i.e. it involves doing or not doing something), the guarantor is compelled to indemnify the creditor with an equivalent performance (fideiussio indemnitatis). This equivalent could take the form of the performance of a different obligation to do or not to do something or to pay damages to the credi-

174 The obligation to do something has been considered as a possible object of guarantee only in case it is not intuitu personae and the guarantor is able to comply in exactly the same manner as the debtor (Casanova Mussons, La relaci6n obligatoria de la fianza, Barcelona 1984).

tor175. When a guarantee consists of an equivalent of the secured obligation, it may be difficult to ensure that the guarantee is not of a more onerous nature than the secured obligation. Usually only monetary debts are secured by means of a guarantee for the same or similar amount as the principal debt.

In some instances the object of the guarantee will be defined by reference to the principal obligation. This is the case of the so called "undeter-

176

mined guarantees" , which object is not fully determined in the contract of guarantee177, as it is the case for the universal guarantees ("fideiussione omnibus"/"fianza omnibus") 178•

b) Effects ofthe principle ofco-extensiveness on the object ofthe guarantee

aa) The secured obligation must be valid

A contract of guarantee can only be validly created for a valid obligation (art. 1939 Italian CC and art. 1824 Spanish CC) 179. The underlying obligation must therefore be validly agreed, must have a valid causa or legal reason and be created on a valid object (art. 1325 Italian CC and art. 1261 Spanish CC). Such valid object must be possible, licit and determined or determinable180 (art. 1346 Italian CC and art. 1273 Spanish CC). If the principal obligation is not valid, the guarantee cannot be considered to be valid. In this respect, Italian Supreme Court has stated that the guarantee for tort liability is valid. The object guaranteed is the damage caused by

175Cass. 9 May 1985 no. 2891 cited by Petti, 121; Bianca, 483.

176The term "undetermined guarantee" has been criticized within academic debate. These guarantees can be determined by relation to the principal obligation. The designation "guarantees with determinable object" has been considered to be a more accurate description (Petti, 119).

177Cass. 9 December 1997 no. 12456, GI, 1998, I, 1, 11; Cass. 1 August 1987 no. 6656 and Cass. 18 July 1997 cited by Petti, 119.

178See under Chapter 2, C., VI. The universal guarantee (fideiussione omnibus/fianza omnibus), 72.

179This is a direct consequence of the principle of co-extensiveness. See: Relazione al Codice Civile, no. 759 and Cass. 19 November 1959 no. 3418, FI, 1959, voce Fideiussione e mandato di credito, 921. Such a principle was already present in Roman Law: Digest 46, 1, 16: "fideiussor obligare non potest ei, apud quern reus promittendi obligatus

non est" and Digest 46, 1, 29: "si sub impossibili condiciones stipulatus sim, fideiussor adhiberi non potest". Today such a rule is to be found in almost all legislations: § 768 and 770 German BGB, art. 2010 French CC.

180 Guarantees on future and conditional guarantees are therefore valid if enough elements are disclosed in the contract to make possible the exact identification of the object. See under Chapter 2, C., IV. The guarantee for future obligations, 69.

the negligent act of the debtor. It is therefore a licit object and can be validly guaranteed181 •

bb) The extent ofthe secured obligation limits the extent ofthe guarantee

The extent of the object of the guarantee cannot exceed182 or be more onerous than the guaranteed obligation. Thus the guarantee cannot be given in duriorem causam i.e. the guarantor cannot be compelled to pay more than the debtor (art. 1941 par. 1 Italian CC and art. 1826 Spanish CC). The guarantee can however be created in leviorem causam, i.e. for a part of the principal obligation or under better conditions (art. 1941 par. 2 Italian CC and art. 1826 Spanish CC)183•

In general, once the guarantee has been created any changes regarding

the content of the principal debt can only occur if they are favourable for the guarantor184•

C. Extent of the guarantee obligation

I. In general

The extent of the guarantee can be determined by reference (per relationem) to the secured obligation185• Unless a specific agreement to limit the extent of the guarantee has taken place, the guarantee is presumed to cover

181Cass. 27 June 1967 no. 1590 and Cass. 8 January 1974 no. 39 cited by Petti, 123.

182It might however be more intense. This could be achieved by including a real guarantee as an extra security. See: Cass. 14 July 1971 no. 2300, FI, 1971, no. 42; Cass. 13 July 1967, no. 1738, GC, 1967, I, 1588, GI 1968, I, 1, 838 and Moretti 1980, 89; Ravazzoni, Nov.Dig.It, 281; Guilarte, 93.

183In Italy the guarantee in leviorem causam has been considered exceptional: So, Cass. 31 January 1968 no. 315 cited by Macario, La fideiussione, not published: "L'identita dell'oggetto della fideiussione e dell'oggetto dell'obbligazione del debitore principale, nella sua stessa quantita e nelle sue stesse condizioni deve considerarsi elemento normale e essenziale del vincolo che assume ii fideiussore"). If any agreement has been made regarding the extent of the guarantee obligation, it shall be considered to be exactly the same as the object of the principal.

184Ravazzoni, Nov.Dig.It., 1961, 281.

185In Spain guarantees without an agreed limit of extent are generally denominated "indefinite guarantees". Their content is established by reference to the secured obligation. By contrast, the so-called "definite guarantees" are agreed to cover a maximum amount. This theoretical distinction is also known in other Romanic countries. In these countries, such as France, Belgium and Luxembourg the same terminology is applied. In Italy the same conceptual distinction is also applied in theory in exactly the same terms as it is done in the countries mentioned. This is the case even if there is no specific terminology for each kind of contract in Italy.

62 Chapter 2: The contract ofguarantee

the secured obligation in its entirety. In such a case the liability of the guarantor is ex lege the secured obligation. This is thus enlarged to embrace all accessories, including the procedural costs which have arisen due to the guarantor being required to perform payment (art. 1942 Italian CC and art. 1827 par. 2 Spanish CC).

The parties may agree to create a limited guarantee. The liability of the guarantor is then limited to the amount agreed in the contract. This amount cannot be extended in any manner without a new agreement. The limited guarantee is the most common form of guarantee which is to be found within contemporary banking practice. It is especially common in the situation of guarantee for non-fungible obligations.

II. The extent ofa non-limited guarantee

1. Determination ofthe extent ofnon-limited guarantees

Non-limited guarantees are valid in Italy and Spain. Their extent is limited by both civil codes to that of the secured obligation and its accessories 186• Hence, the guarantee is subject to the same terms of amount, conditions and extension of time as the secured debt 187• The agreement of a maximum amount for which the guarantor can be liable is not a constitutive requirement of these guarantees in Spain and in Italy it is required only for the valid creation of future guarantees (art. 1938 Italian CC).

a) The secured obligation

The secured debt does not need to be determined at the moment the guarantee is created but it has to be determinable on the basis of the guarantee contract. As a result, the guarantor has assumed a valid obligation which already exists but the extent of which can only be determined at a later moment in conjunction with the guarantee agreement itself. The guarantor is thus answerable for the secured debt once it has been determined.

b) Extensions ofthe secured obligation after constitution ofthe guarantee

Extensions of the secured obligation are not included in the guarantee unless consented to by the guarantor188• The guarantor is not liable for the

186See also 2016 par. 1 French, Belgian and Luxembourgian CC. Austrian authors interpret § 1353 Austrian CC in the sense that non-limited guarantees also cover the accessories of the secured debt (Schwimann/Mader, on § 13 53 no. 5).

187The non-limited guarantee is valid until the secured debt prescribes. Carrasco, Cordero and Marin, 143.

188In Germany the extent of the guarantor' s obligation is based on the extent of the secured obligation (§ 767 par. 1 sent. 1 German CC). Extensions of the secured obligation at any time also increase the guarantee obligation so long they do not arise from a

stipulations agreed between creditor and debtor to enlarge the obligation of the debtor or to make the conditions harder after the agreement of the guarantee189• The guarantor is thus only answerable for the debtor's obligations which are derived from the contract he has guaranteed and not for any other obligation which arises by virtue of a new and posterior agreement. This ban of the extension of a guarantee above the limits of the secured obligation is not specifically contained in Italian and Spanish civil codes as it is in other European regulations 190. However it is considered by the Italian191 and the Spanish192 Courts as a consequence of the construal and application of the principle of co-extensiveness; i.e. a natural consequence of the ancillary nature of the guarantee.

The enactment of a specific provision to limit the extension of the guarantor's liability would imply a more systematic regulation of the guarantee. This is especially pertinent in those cases in which the agreements are modifications of the underlying contract, i.e. they do not result in a new contractual relationship.

c) The specific case ofextension oftime (pr6rroga)

According to art. 1851 Spanish CC, the guarantor is not bound by an extension of time which has been granted to the debtor193. The same conclusion is to be found in Italian case law194 and legal theory195, the reasoning being that an explicit or implied extension of time serves to create a new

new agreement between creditor and debtor (§ 767 par. I. sent. 2 German CC). § 766 German CC: "Fur die Verpflichtung des Burgen ist der jeweilige Bestand der Hauptverbindlichkeit maBgebend. Dies gilt insbesondere auch, wenn die Hauptverbindlichkeit durch Verschulden oder Verzug des Hautpschuldners geandert wird. Durch ein Rechtsgeschaft, das der Hauptschuldner nach der Obernahme der Burgschaft vornimmt, wird die Verpflichtung des Burgen nicht erweitert". "Der Burge haftet ftir die dem Glaubiger von dem Hauptschuldner zu ersetzenden Kosten der Kilndigung und der Rechtsverfolgung". See Horn/Staudinger, on § 767 no. 36.

189This rule is applicable even in the case of non-limited guarantees.

190It is the case of Germany, France, Belgium, Luxemburg and Finland. § 767 par. 1 sent. 3 German CC sets explicitly the non-extension of the guarantee to those obligations asumed by the debtor after the agreement of the guarantee ("Durch ein Rechtsgeschaft, das der Hauptschuldner nach der Ubemahme der Bilrgschaft vomimmt, wird die Verpflichtung des Burgen nicht erweitert"). Art. 2013 French, Belgian and Luxemburgian CC and § 8 par. 1 Finnish Law of Guarantees also prescribe the same rule. For Austria see Schwimann/Mader on§ 1351no.14.

191Cass. 26 July 1956 no. 2886, FI 1957, I, 840.

192AP Madrid 26 January 1995 [AC 1995 no. 148].

193STS 20 December 2002 [RA 2003 no. 60], STS 30 December 1988 [RA 1988 no.

10075).

194Cass. 26 July 1956 no. 2886, FI, 1957, I, 840.

195Giusti, 151; Moretti, La fideiussione, 86 ff.