учебный год 2023 / de la Mata Munoz, Personal Security

could thus not abuse the clause of renunciation. If the clause had been included in the contract, the creditor did not need the special authorisation of the guarantor in order to grant credit, yet the creditor did have to inform the guarantor of the new circumstances. If the clause of renunciation was abused the guarantor could set up the defence of bad faith (exceptio doli generalis). This is the way in which Italian case law tried to reconcile the needs of commercial practice with the need for honest transactional relations656. However, scholars generally considered such clauses unfair vis-a- vis the guarantor and they advocated that they should be banned657. This criterion followed the new European trend to grant consumers a higher level of protection. Par. 2 of art. 1956 Italian CC was enacted as a conse-

quence of the adoption of the new European conception of public economic order in Italy658.

e) The principle ofgoodfaith in the guarantee for future obligations under Spanish Law

The Spanish CC does not contain any special rule in line with art. 1956 Italian CC. This absence is mirrored in the German and the French legal systems and within all other regulations of the guarantee within the EU. However similar results are derived from the application of the principle of

good faith in these other European contexts (art. 7 Spanish CC; § 242 German CC659).

In Spain the creditor does not have a general duty to provide information to the guarantor about the financial situation of the debtor660. However, according to the principle of good faith, the creditor has a duty to provide information to the guarantor in specific instances. Firstly, if the guarantor requires information about the debtor which may be easily obtained by the creditor without incurring any further cost and which cannot be easily obtained by the guarantor himself. Secondly, in the case of a general guarantee (omnibus) if the creditor is deciding whether or not to grant further credit and the creditor presumes that the guarantor would not have provided a guarantee under the new circumstances. It should be recognised that these new circumstances can be of a personal (i.e. if he knows that the

Cass. 20 July 1989, nos. 3385 and 3386, FI, 1989, I, 3102. See a critical analysis of the case law: Mariconda, 3102 ff.; Cantillo/Munari, 62 ff.

656Benfatti/Munari, 115. See also, Costanza, 221 ff.

657Simonetto, La fideiussione prestata da privati, 101 ff.

658See Petti, 205 ff.

659In Germany, if the debtor's financial situation has gravely worsened, it is considered a serious reason as to discharge the guarantor for future debts (BGH 21 January 1993, NJW - RR 1993, 944, 945).

660STS 20 October 1993 [RA 1993 no. 7753].

relationship between the parties has changed; like in the case of divorce) or financial nature661 .

In Germany there is no general duty to provide information about the financial situation of the debtor. Information must only be presented in exceptional circumstances on the basis of the principle of bona fides (§ 242) and provided that the guarantor suffers an extreme injury662 . Moreover, § 610 is applied by analogy and allows for the discharge of the guarantor if the creditor granted further credit without regard to the fact that he was aware of the new financial difficulties of the debtor663 .

In France the creditor is liable for the damage that is suffered by the guarantor if the credit was granted fraudulently. The guarantee is extinguished by a set-off against the damages664. Moreover, France has included a provision in favour of the consumer guarantor who grants a guarantee without stipulating a time limit. These guarantors have the right to be annually informed about the financial situation of the debtor (art. 2016 French CC; art. 47 par. 2 sent. 2 Madelin Act).

3. Extinction ofthe guarantee by reason oftime. Discharge ofthe guarantor after maturity ofthe underlying obligation (scadenza dell 'obbligazione garantita ed inerzia de/ creditore)

a) In general

The creditor is free to require the debtor for performance at any time from the maturity of the debt until it has prescribed. The guarantor does not have any influence on this decision although he is directly affected by it. Between the time of the maturity of the debt and the time of the demand for performance, the potential for the debtor to effect payment may have considerably increased or be reduced. As a result it is difficult to determine whether or not a passive attitude of the creditor with regard to the demand for payment is positive or negative for the guarantor. In any case the mere uncertainty regarding the performance may be considered negative enough for the guarantor, especially if it is extended over an excessively long period. On this basis, art. 1957665 was introduced in the Italian CC of 1942.

661Carrasco, Cordero and Marin, 108 and 163.

6620LG Koln 7 February 1995, WM 1996, 1965; OLG Bamberg 13 December 1999, WM 2000, 1582.

663BGH 6 December 1984, WM, 1985, 155.

664Cass.comm. 24 May 1976, Bull. Civ. 1976, IV, no. 171. Mouly, Les causes, 471.

665Art. 1957 Italian CC: "The liability of a guarantor remains in effect even after the primari obligation has matured, provided that the creditor, within six months, has instituted an action against the debtor and has diligently pursued it. This provision applies even if the guarantor has expressly limited his guarantee to the same period as that of the primary obligation. In such case, however, the action against the debtor shall be insti-

166 Chapter 2: The contract ofguarantee

This rule sets a new cause of extinction in order to prevent there from being an excessively long period of uncertainty for the guarantor in relation to his liability due to the creditor holding a passive attitude with regard to the demand for payment of the debt666. The inactivity of the creditor with regard to the recovery of the claim during a period of six months after maturity of the debt, is sanctioned with the extinction of the guarantee. If the guarantor had limited his liability to the same period as that of the secured debt, the guarantee extinguishes if the creditor did not take action against the debtor within two months.667

In contrast, Spain has no provision to establish time limits for the validity of the guarantee. The parties may agree to a time limit in the contract but there are no legal limits to the length of time for validity. This lack of specific regulation must receive some criticism. The guarantor remains liable until the creditor requires that the debtor should effect performance. During that period the guarantor suffers a degree of uncertainty with regard to his duty to perform, which is unnecessarily harmful. Moreover, the creditor is not rendered as being in a less secure position if the validity of the guarantee is legally limited by a reasonable time constraint.

b) The extinction ofa guarantee agreed without time limit

aa) In general

In Italy a guarantee that is agreed without a time limit is extinguished within six months after the underlying obligation has matured. This is the legal position unless the creditor has instituted an action against the debtor and has diligently pursued it (art. 1957 par. I Italian CC668).

Italy is the only country within the EU that has placed a general legal limitation on the extension of a guarantee that is agreed without a time limit. Some countries have established legal limits for global guarantees or for guarantees for future debts without time limit, but there is not a general

tuted within two months. The action instituted against the debtor also interrupts prescription with respect to the guarantor". ("Il fideiussore rimane obbligato anche dopo la scadenza dell'obbligazione principale, purche il creditore entro sei mesi abbia proposto le sue istanze contro il debitore e le abbia con diligenza continuate. La disposizione si applica anche al caso in cui il fideiussore ha espressamente limitato la sua fideiussione allo stesso termine dell'obbligazione principale. In questo caso pero l'istanza contro il debitore deve essere proposta entro due mesi. L'istanza proposta contro il debitore interrompe la prescrizione anche nei confronti del fideiussore").

666Bozzi/Rescigno, La fideiussione, le figure affini, 209.

667Art. 866 Greek CC also establishes a combined system of time limits and diligence of the creditor in the requirement for performance. The creditor has to take legal action and pursue it diligently within one month after the expiration of the fixed time.

668See also: art 652 Portuguese CC and art. 511 par. 1 Swiss code of obligations.

rule that covers guarantees for existing obligations that do not include a time limit669 . Other countries have provided general limitations to the extension of guarantees that are agreed without time limit. However this has been achieved by means of case law rather than by statutory provision670 •

In Portugal the secondary guarantor will be discharged after the expiry of two months from the moment at which he required the creditor to ask the debtor to effect performance. Notice from the guarantor is effective (one month after notification) if the creditor has not sued the debtor within this time. Art. 652 Portuguese CC states that upon the maturity of the underlying obligation the secondary guarantor has the right to demand the creditor to sue the debtor within two months after the expiry of the one month that follows from the moment at which the guarantor provided effective notice to the creditor.

In Spain and in Germany671 there is no legislation that establishes any limit to a guarantee agreed without a time limit672 • The guarantee therefore remains valid for the period that the underlying obligation remains valid, provided that the legal right to require the performance of the secured debt has not prescribed.

bb) Global guarantees and guarantees for future debts without time limit

In Italy, the guarantor of global guarantees and guarantees that are granted

for future obligations without a time limit may extinguish the guarantee by giving notice to the creditor6731674 .The guarantee covers those obligations

669 Countries like Finland and the Netherlands have included provisions limiting the extension of global guarantees and guarantees for future debts respectively without time limit. France has included a provision protecting the consumer guarantor, by which the professional creditor is obliged to inform annually the consumer guarantor about his right ofrevocation of the guarantee (art. 47 par. 2 sent. 2 Madelin Act 11 February 1994).

670 The case law of countries like Austria or France has recognised the right of the guarantor to terminate the guarantee without time limit by giving notice to the creditor (Austria: OGH 8 November 1970, JBl, 1971, 257; France: Cass. Comm 3 December 1979, JCP G 1980 IV, 67). One decision of the Austrian Supreme Court required areasonable length of the guarantee (OGH 22 June 1993, OBA 1994, 239). This is also the tenor in art. 2.10 RPS: "Limiting Guarantee Without Time Limit. (1) Where a guarantee has no time limit, its duration may be limited to cover existing obligations only by any party giving notice of reasonable length to the other party. (2) The guarantor's maximum liability is limited to the amount of the secured claim and its accessories as defined in art. 2.5 par. 2 and 3 as of the date at which the limitation becomes effective".

671Seiler/Erman, on§ 765, no. 8.

672In Spain only one recent decision of a minor court established the possibility to terminate a guarantee without limit on appliance of the principle of good faith (SAP Cordoba 12 June 2000 [RA 2000 no. 2070].

673Trib. Milano 15 September 1993, BBTC, 1994, II, 548, De Maria/Franzoni, 1486;

Giusti, 165.

168 Chapter 2: The contract ofguarantee

that exist until the moment of termination675 . The date of termination is

that which is chosen by the guarantor in accordance with the requirements of notice6761677 •

By way of contrast, in Spain it is not possible to unilaterally terminate the guarantee. This is the case even for continuing guarantees and even if the secured obligation may be indefinitely extended in time. The guarantee that is granted for a future obligation is not legally limited in terms of time. The guarantor remains indefinitely liable until the obligation has been agreed and has matured. Therefore the guarantor is not protected from an eventual excessive long duration of his liability.

In Germany, the lack of regulation with regard to the termination of the guarantee without a time limit has been moderated by case law678 • Those guarantees for future obligations that lack a reasonable time limit are hold extinguished. This is an exceptional measure only justified if a reasonable time679 has elapsed since the agreement was made, or there is another grave reason680• These exceptions are based upon the principle of bona tides, established in § 242 German CC and also upon the criterion that it must be possible to terminate long term relations in order to facilitate future freedom of contract681 . The same reasoning could be applied in Spain in order to limit guarantees for future debts or global guarantees without time limit which would contribute to the protection of the guarantors.

674Dutch CC establishes the same legal rule in its art. 7: 681 par. 1 lit. a and the recent Finnish law on dependent guarantees too (§ 6 par. 1).

675De Maria/Franzoni, 1484.

676Trib. Milano 15 September 1993, BBTC 1994 II, 548; De Maria/Franzoni, 1486.

677The same is explicitly established in art. 7:861 par. 2 Dutch CC. In Germany, the obligations covered by the guarantee are also those arisen until the termination is effective, i.e. after the guarantor has given notice (Habersack, Miinchener Kommentar,on § 765 no. 57. Contra: Derleder, NJW, 1986, 97, 102).

678BGH 21January1993, NJW - RR 1993, 944 ff.; Habersack, Miinchener Kommentaar, on§ 765 no. 55; Seiler/Erman, on§ 765, no. 8.

679A period of three years has been considered enough in German case law and litera-

ture (BGH 4 July 1985, NJW, 1985, 3007, 3008; Bulow no. 807). The notice for termination given by the guarantor is generally effective after a reasonable period which depends on the circumstances of the case (BGH 4 July 1985, NJW 1985, 3007, 3008) but generally three months (Habersack, Miinchener Kommentaar, on § 765 no. 55; OLG Celle 5 October 1988, NJW - RR 1989, 548, 548). Only in the case of termination by severe reason the period of notification may be shorter (four to six weeks according to OLG Celle 5 October 1988, NJW - RR 1989, 548, 548) or even immediate (BGH 4 July 1985, NJW 1985, 3007, 3008) under special circumstances.

680 BGH 4 July 1985, NJW 1985, 3007, 3008; Seiler/Erman, on 765, no. 8.

68 1 Reinicke and Tiedtke, Biirgschaftsrecht, no. 130; OLG Diisseldorf 24 November 1998, ZMR, 2000, 89.

c) Extinction ofthe guarantee limited to the moment ofmaturity ofthe underlying obligation

In Italy, if the guarantor has expressly limited the guarantee to the same period as the underlying obligation, the guarantee will be extinguished

upon the same conditions but within two months of the moment of extinction of the underlying obligation (art. 1957 par. 2 Italian CC)6821683.

In Spain there is no regulation to establish that the guarantee will remain valid during a certain (short) period of time after the maturity of the underlying obligation. The Spanish creditor must prove that he required the guarantor to perform at the moment at which the debtor was obliged to do so (constiutido en mora/mora debitoris). The creditor must be alert and extremely diligent in making his request for performance. This could be deemed excessively onerous for the creditor just to avoid losing his right vis-a-vis the guarantor.

As a solution, the guarantee could be held to remain valid until the date in which the secured debt prescribes684. However, in most cases there is a clearly established time limit in relation to the guarantee. Moreover, it may actually be damaging for the guarantor to remain liable for a longer period than that which he would have been liable for if the guarantee had been limited to the term that was originally agreed. Therefore, in order to be fair to both, the creditor and the guarantor, it would be necessary to follow the example of neighbouring countries and establish a period of time after maturity of the underlying obligation during which the guarantee remains valid and within which the creditor must make his request for performance.

d) Extinction ofthe guarantee agreed with a specific time limit

In Italy and in Spain if the guarantee is agreed to have a specific time limit685 the guarantor will be automatically discharged upon the expiration of such time limit. This is the case unless the creditor has taken action against the debtor or the guarantor; i.e. the creditor has requested performance before the expiration of the time period. Such demand does not need to be

682Cass. 20 August 1992 no. 9719, FI, 1993, I, 2171 and GI, 1993, I, 1, 1256; Cass. 28 March 1990 no. 2545, BBTC, 1990, II, 683; Cass. 8 February 1989 no. 786, GI, 1990, I, 1, 460.

683§777 German CC, art. 510 par. 3 Swiss Code of Obligations.

684Carrasco, Cordero and Marin, 227.

685The time limit for the guarantee must be after the time of maturity of the underlying obligation. The period between maturity of the debt and maturity of the guarantee must also be reasonable, so that the creditor had enough time to require the debtor for performance. Moreover, the time limit does not need to be a certain date. It may also be established by reference to a certain event that may come (see: BGH 6 May 1997, NJW 1997' 2233).

170 Chapter 2: The contract ofguarantee

of a procedural nature. The guarantor must be informed of the actions that are being taken against the debtor686. This creditor's duty to inform the guarantor has, though, not received the statutory establishment that has been granted in other countries like Germany687 or Greece688 .

In Germany, a joint and several guarantee that is agreed for a fixed term is extinguished upon the expiration of that term. This is the case unless the creditor informs689 the guarantor of his intention to demand that performance should be effected immediately after the specific point in time was reached (§ 777 par. I sent. 2)690. If the guarantee is secondary, the creditor must proceed against the debtor immediately after the expiration of the fixed term, pursue the legal proceedings without significant delay and inform the guarantor immediatelt; of his intention to require performance (§ 777 par. I sent. I German CC) 91 •

The criteria that are followed in Italy and Spain are more favourable to the guarantor. The creditor must start the action before expiration of the time limit established by the parties. No difference is observed to exist between joint and several and secondary guarantees.

686Giusti, 149 and 253; Carrasco, Cordero and Marin, 226.

687§ 777 par. 1 German CC: ,,If a guarantor has assumed the guarantee for an existing obligation for a fixed time, unless the creditor proceeds without delay to the collection of the claim pursuant to § 772, continues the procedure without serious delay, and, after the termination of the procedure, notifies the guarantor without delay that he has recourse against him. If the guarantor does not have the claim for prior execution against the principal debtor he is discharged after the expiration of the fixed time, unless the creditor gives him notice without delay". ("Hat sich der BUrge filr eine bestehende Verbindlichkeit auf bestimmte Zeit verbUrgt, so wird er nach dem Ablaufe der bestimmten Zeit frei , wenn nicht der Gliiubiger die Einziehung der Forderung unverzUglich nach MaBgabe des

§772 betreibt, das Verfahren ohne wesentliche Verzogerung Fortsetzt und unverzUglich nach der Beendigung des Verfahrens dem Burgen anzeigt, dass er ihn in Anspruch nehme. Steht dem Burgen die Einrede der Vorausklage nicht zu, so wird er nach dem Ablaufe der bestimmten Zeit frei, wenn nicht der Gliiubiger ihm unverzUglich diese Anzeige macht").

688Art. 866 Greek CC: ,,Wer sich nur fiir eine bestimmte Zeit verbilrgt hat, wird von der BUrgschaft befreit, wenn nicht der Gliiubiger innerhalb eines Monats nach dem Ablauf dieser Zeit seine Forderung gerichtlich geltend macht und das Verfahren dartiber nicht unverzUglich fortsetzt" (German Translation: Gogos, Das Zivilgesetzbuch von Griechenland, Berlin/TUbingen, I 951 ).

689The information does not need to comply with formalities (Habersack, Milnchener Kommentaar sub § 777 no. 5).

690Also in Greece, the creditor has a period of one month after the fixed term, but in this case he has to take legal action and pursue it without delay and not only inform about his intention (art. 866 Greek CC).

691In opinion of some scholars, the guarantee limited on time may also terminate for serious reasons as has been declared by case law for the guarantees without time limit (Habersack, MUnchener Kommentaar, on§ 765, no. 56.

The guarantee for future obligations that is limited by time may cover the debts that are created before the time limit set in the contract. However, such a guarantee may only cover those debts that are enforceable before that particular date. The contract should be clear in its stipulation upon this point. If the contract is unclear, the clause that establishes the time limit must be construed to determine the position on this issue. According to Italian and the majority of Spanish case law, the guarantor is only liable for the obligations that are created before the time limit agreed in the guarantee contract. This is the case even if the debt matures after the time limit has elapsed692. However, it has occasionally been considered that the time

limit set in the contract is meant to be the final point at which the guarantee may be enforced693 •

It is the responsibility of the creditor to demand the guarantor for per-

formance before the expiry of the agreed term. This demand does not need to be of a judicial nature694•

e) The terms established in art. 1957 Italian CC

The dies a quo of the terms (generally six months, but occasionally two months for guarantees that have been expressly limited to endure for the same period as that of the principal obligation) starts at the moment at which the secured obligation matures695 . That moment of maturity is established by the parties in the contract.

If no specific term has been established, the obligation matures according to the regime set in art. 1183 Italian CC696• In the case of a current ac-

count, the term starts from the moment at which the account was closed697 .

692Cass. 8 August 1988, no. 4871 cited by Petti, 215; STS 27 January 1961 [RA 1961 no. 293]; STS 24 November 1982 [RA 1982 no. 6929]; STS 26 June 1986 [RA 1986 no. 3796]; STS 28 December 1992 [RA 1992 no. 10658]; SAP Madrid 2 June 1997, RGD 1998, 1189.

693In a case, the debt already existed at the time of agreement of the clause limiting the time (STS 31 October 1985 (RA 1985 no. 513 5]).

694STS 28 September 1993 [RA 1993 no. 6748].

695Cass. 14 February 1975, no. 566, FI , Rep. 1975, voce Fideiussione e mandato di credito, no. 28; Cass. 7 November 1986, no. 6547 BBTC, 1988, II, 184; Bozzi/Rescigno, La fideiussione, le figure affini, 271.

696Art. 1183 Italian CC: "If the time for performance is not specified, the creditor can demand it immediately. However, when by usage or the nature, manner or place of performance, a time is necessary, it is fixed by the court, in the absence of agreement between the parties.

If the time of performance is left to the discretion of the debtor, it is also for the court to establish it according to the circumstances; if it is left to the discretion of the creditor, it can be fixed by the court at the request of the debtor who wishes to free himself of the obligation".

697 App. Napoli 11October1962, BBTC, 1963, II, 55.

In the case of continuing obligations, it starts from the moment of the maturity of each of the debts. The guarantee that is granted for continuing obligations, serves to secure all of the liabilities that must be performed within the scope of the contract. These liabilities form a single entity as they are all derived from the same contract. However, they can all be fully identified and distinguished from each other by virtue of their own elements. The guarantor may be sued in relation to each of the liabilities; i.e. if there is a failure to perform with regard to any of these liabilities. Accordingly, the guarantor must be sued within the terms that are established in art. 1957 Italian CC for each liability or the guarantee will be extinguished in relation to that specific liability698 .

j) Requirements to avoid the extinction ofthe guarantee within the given term

aa) In general

Art. 1957 Italian CC protects the guarantor from the adverse consequences that may result from a lack of activity on the part of the creditor with regard to the requirement for performance. Consequently, the guarantee is not extinguished on the basis of the provision if the creditor has taken appropriate action ("istanze") against the debtor and has diligently pursued it. In such a case the creditor has done everything that he could do in order to obtain payment and he should not be made to assume any risk above that originally established in the contract.

bb) An action against the debtor

The term "take action" ("istanze") is a general term and its meaning has been the source of some controversy in Italy. Case law and certain prestigious scholars have construed the term in a very restrictive fashion with regard to judicial actions699. The judicial action may be of any kind. An example would be that of the retention of the goods of the debtor by the creditor ("sequestro conservativo di beni del debitore principale anterior-

698Cass. 26 Febraury 1985 no. 1655, FI 1985, I, c. 2672; Cass. 14 October 970 no. 2028, BBTC, 1971, II, 207; Cass. 17 February 1968 no. 570, GI, 1969, I, 1, c. 748.

699The notion of "istanze" has been described as "tutti i vari mezzi di tutela giurisdizionale esperibili al fine di conseguire il pagamento, indipendentemente dal lorn esito e dalla lorn concreta idoneita a sortire il risultato sperato; resta, invece escluso che,

in quello stesso termine possa rientrare un semplice atto stragiudiziale, o una denuncia o una querela da presentare in sede penale o un ricorso per accertamento tecnico preventivo" (Cass. 14 january 1997 no. 289, FI Rep. 1997, voce Fideiussione e mandato di credito no. 54); Cass. 11 January 1983 no. 183, FI, Rep. 1983, voce Fideiussione e mandato di credito, no. 27; Fragali, L'azione del debitore, 508; Calderale, 79.

mente al giudizio di merito")700. A simple requirement for payment or an invitation to pay is not sufficient to prevent the discharge of the guarantor within the given terms of the contract701 . However, the parties may choose to derogate from the need to commence a judicial action. They may explicitly agree that a simple (non-procedural) request for performance is enough to prevent the extinction as established in art. 1957 Italian CC702.

A minority of scholars disagree with this interpretation of the term "istanze". They consider that this term is not restricted to procedural measures but that it includes any kind of action that is performed in order to require that the debtor effects performance. This opinion is based mainly on the rationale of art. 1957 Italian CC. The aim of this provision is to prevent the creditor from exhibiting a lack of interest and activity in relation to making a request for payment. A non-judicial action would be enough in this respect7°3•

In Spain the request for performance by the creditor does not need to be of a judicial or procedural nature. Accordingly, if the creditor and the debtor are negotiating payment, the guarantee will remain valid until such negotiations are complete.

In the case of joint and several guarantees the creditor may initiate the judicial action against the guarantor or against the debtor in order to prevent the extinction of the guarantee704 •

cc) Diligent pursuit by the creditor prevents the extinction

The creditor must take actions and also diligently pursue these actions. This is a necessary corollary of the rationale of this provision705 • The guarantor is only in receipt of proper protection if the creditor does everything

70°Cass. 19 December 1985 no. 6498, FI 1986, I, 685; Cass. 4 September 1991 no. 9364, GC, 1992, I, 3134.

701Cass. 5 September 1966 no. 2315; Cass. 10 July 1968 no. 2393; Cass. 26 April 1972 no. 1305 and Cass. 22 July 1976 no. 2828 cited by Giusti, 288 and 289; Cass. 11 January 1983, no. 183, FI Rep. 1983, voce Fideiussione e mandato di credito, no. 27; Cass. 14 July 1994 no. 6604, BBTC 1995, II, 422; Calderale, 78; Fragali, L ' azione <lei debitore, 508.

702Cass. 3 April 1996 no. 3085, GI 1997, I, 1, 944. Italian Supreme Court has declared that the parties may agree in the guarantee contract that instead a judicial procedure, an arbitral one started within the terms established in art. 1957 Italian CC may be enough to avoid the extinction of the guarantee: Cass. 23 September 1996 no. 8405, FI Rep 1996, voce Contratto in genere, nos. 265-266.

703Biscontini, Solidarieta 167; Girino, 544 ff.

704Cass. 13 September 1977 no. 3952, FI, 1978, I, 678. See also: Cass. 11 January 1983 cited by Calderale. Contra: Cass. 3 June 1977 no. 2263, FI 1978, I, 679 and Biscontini, Soliedarieta fideiussoria, 164 ff.

705Cass. 22 May 1979 no. 2958; GC, 1979, I, 1982: "non far ricadere sul fideiussore la mancanza di diligenza del garantito".