учебный год 2023 / de la Mata Munoz, Personal Security

Second, since the assumption of performance is agreed by the debtor and the third party, they may modify the agreement at anytime in any way they wish. Such changes can occur without the participation of the creditor. Differently, the guarantee is directly agreed with the creditor. Since the debtor is not part of it, he cannot affect such agreement. The creditor has the right to commence an action against the guarantor without consulting the debtor.

The creditor may also give his conformity to the assumption of performance. In this case, since he has also entered the relationship, the agreement cannot be withdrawn or modified without his consent. This lessens the differences with the contract of guarantee. However, the main structural difference between both contracts is still present. In the case of assumption of performance, two different persons are liable for the performance of one unique obligation while in the contract of guarantee there are two differentiated obligations which have a common interest.

c) Expromission (espromissione/expromisi6n)

Expromission refers to the situation in which a third party assumes the debtor's obligation without delegation. It is regulated in art. 1272 Italian CC98 and is found in Spanish commercial practice. It is an agreement between the debtor and a third party. The creditor remains outside the relationship unless he accepts the agreement. Both co-debtors are liable in solido for a unique obligation.

3. Guarantee and adherence to the debt (acollo/adhesi6n a la deuda/9

By means of a contract of adherence to the debt a third party enters the obligatory relation and becomes principal debtor alongside the original one. This case is also known as a "co-debt for security purpose"100• The legal structure of this relationship is that of a co-debt. The subjective structure of the contract is modified, so that the new debtor is now co-obliged,

98Art. 1272 Italian CC: "A third person who, without delegation by the debtor, assumes the obligation of the debtor to the creditor, is bound in solido with the original debtor unless the creditor expressly releases the latter. Unless otherwise agreed, the third person cannot set up against the creditor the defences connected with the third person' s relationships with the original debtor. However, he can set up the defences which the principal original debtor could have set up against the original debtor or are derived from acts subsequent to the expromission. The third person cannot set up against the creditor the compensation which might have been set up by the original debtor, even if such compensation occurred before the expromission".

99Petti, 271 ; Roca Puig, 189; Basozabal, 83 ff.; Adame Martinez, 143 ff.

100 In Germany Kumulative Schuldmitiibemahme oder Schuldbeitritt. See a comparison with the contract of guarantee in Horn/Staudinger on § 765 no. 363.

together with the original one. There is only one obligation, for which both the original debtor and the new party are liable simultaneously, at the same rank and degree, and independently from each other101 . This liability is joint and several, for the same obligation and interest. However, the exclusive intention of the new co-debtor is to secure the creditor against the non-performance of the original debtor. Consequently, the legal causa of the contract is that of a guarantee. This has allowed certain Spanish scholars102 to sustain that the co-debt for security purpose is a guarantee with the only particularity that liability between the co-debtors is presumed to be joint and several.

In contrast to the guarantee, the co-debt for security purpose constitutes a second, different obligation, which is not ancillary (co-existent) and not secondary. The new debtor assumes his own principal obligation, which may have a different extent and which is not affected by changes in the original debt103•

In Spain the liability of the guarantor is secondary and not joint and several like that of a co-debtor. But even if joint and several liability has been agreed for the guarantee, the liability of the guarantor is derived from his guarantee obligation. His position regarding the credit is secondary, in the sense that he performs instead of the debtor and also retains his rights against him. The rules of the guarantee on the relationship between the debtor and the guarantor are also observed in the case of a joint and several guarantee. By contrast, in the co-debt for security purpose, these rules do not apply104• In Italy this case is explicitly regulated in art. 1273 ff. Italian CC. The third party is joint and severally liable according to art. 1273 par. 3 Italian CC. By contrast, in Spain (as also in Germany) there is no specific regulation on this issue. The general rules on co-debt are applied (art.

105

1137 ff. Spanish CC ), together with the stipulations of the agreement of the parties. Co-debtors in Spain are not ex lege joint and several (art. 1137

101In Spain: STS 28 September 1960 [RA1960 no. 3150]; STS 17 June 1985 [RA 1985 no. 3277]; STS 24 February 1984 [RA 1984 no. 777]; STS 28 March 1985 [RA 1985 no. 1218]; STS 15 December 1989 [RA 1989 no. 8832]; STS 30 December 1994 [RA 1994 no. 10243] commented by Adame Martinez, CCJC 38 [1995] § 1028. In Germany see Horn/Staudinger on§ 765 no. 363 with case law.

102Carrasco, Cordero and Marin, 128.

103BGHZ 6, 397 cited by Horn/Staudinger, on§ 765, no. 363.

104Contra: Carrasco, Cordero and Marin, 128. These scholars believe that the new debt that is assumed is ancillary to the original one and that the cause or title of the new obligation is always that of a guarantee. They completely identify the adherence/assumption of debt with the contract of guarantee. The only difference is that in the case of the assumption it is presumed that the new debtor/guarantor assumes a joint and several liability.

105Co-debtors in Spain are not ex lege joint and several according to art. 1137 CC.

with regard to their different legal nature. In Italy and Spain112 the guarantee for a bill of exchange is conceived of as being an autonomous contract1 13 (the obligation of the guarantor is valid even if the guaranteed obligation is invalid). It is thus different from the guarantee (ancillary to the secured debt).

In Spain the enactment of the Ley Cambiaria y del Cheque (LCC)114 in 1985 does not seem to have completely solved the disagreement of the scholars in this area. Some authors continue to support the view that the nature of the guarantee for a bill of exchange is that of an ancillary contract115. However, the terms of the Law on this issue make the autonomous character of the bill of exchange absolutely clear116.

B.Creation of the guarantee

I.The sources of the contract ofguarantee

1.In general

The contract of guarantee may be created by the consensual agreement between creditor and debtor, by a statutory provision or by the decision of a judge or court. These are known as primary sources of the contract of guarantee and give origin to the obligation of furnishing with a contract of guarantee. They need to be distinguished from the source of the guarantee obligation, which is the free consent of the guarantor to be liable for the debt of another person117.

112In Spain there is agreement on the autonomous character of the guarantee for bill of exchange only since the Ley Cambiaria y del Cheque of 1985. Previously, the confusing terms of art. 486 Spanish Comm.C. divided the opinion of scholars on this point. Some followed the Italian theories (autonomous character of the guarantee for a bill of exchange). Other legal writers were inspired by the French and considered it to be a special kind of guarantee, with the same ancillary nature. See under Capter 3, B. Gurantee for bill of exchange (l'avallo/el aval cambiario), 210.

113"L' avallo ( ... ) si differenzia dalla fideiussione tipica in quanto esso esprime il principio della autonomia", Petti, 266.

114Ley 19/ 1985 Cambiaria y del Cheque (Law 19/1985 on bills of exchange, promis-

sory notes and cheques) (see arts.35 to 37).

115Guilarte, 51.

116See Chapter 3, B. The guarantee for a bill of exchange (I'avallo/el aval cambiario),

210.

117Santamaria, 856; Guilarte, 62. STS 23 March 1988 [1988 no. 2422].

48 Chapter 2: The contract ofguarantee

These three primary sources of the contract are expressly listed in art.

a) Consensual guarantee

The consensual guarantee is the obligation assumed by the debtor to provide a guarantor for his debt. It is created by agreement between creditor and debtor, by unilateral promise or by testamentary clause of the debtor120 under the form of a separate agreement previous to the conclusion of the principal contract or as a clause inserted in it. The non-performance of the obligation to provide guarantee gives the creditor a right to resign the contract and recover compensation for the damages suffered. The debtor is compelled by this agreement. Therefore, no guarantee is constituted by the consensual guarantee unless the guarantor accepts the conditions established thereby. The consensual guarantee can so clearly be distinguished from the contract of guarantee which takes place between the guarantor and the creditor. Moreover, as no guarantee is actually created by the consensual guarantee agreement, the requirements for the formal constitution and validity of a guarantee do not need to be fulfilled at this stage121 .

The consensual guarantee is not necessary for the valid constitution of the guarantee. It is in fact rather unusual in the practice.

b) Statutory guarantee

The obligation to furnish a transaction with a guarantee may also arise from a legal provision. In Italy the statutory guarantee is not explicitly mentioned as a source of the guarantee contract as it is in art. 1823 Spanish CC. However, a number of Italian legal provisions prescribe the constitution of a guarantee in specific cases in order to secure the performance of obligations or preserve certain legal rights and prerogatives. Therefore, the statutory guarantee is also a primary source of the guarantee in Italy. In certain cases the legal requirement is the grant of any kind of security right in favour ofa third person (art. 492, art. 639, art. 640, art. 647, art. 1608 Italian CC). This obligation would be fulfilled with the grant of a guaran-

118Art. 1823 Spanish CC: "The guarantee may be conventional, legal or judicial, gratuitous or under onerous title. It may be constituted, not only in favour of the principal debtor, but also of another guarantor, whether with the consent of the latter, without his knowledge, or even in spite of his opposition thereto".

119Ravazzoni, Le garanzie, 49; Giusti, 56; Petti, 30. About it and a list of examples relating to the former Italian CC in Dig. It., v. XI, Parte seconda, 1892-1898, 162.

120Moretti/Bigiavi, Fideiussione, Giurisprudenza sistematica civile, 124; Ravazzoni, Fideiussione, Nov. Dig. It., 276. Guilarte, 61.

121Carrasco, Cordero and Marin, 97.

tee or any other security right. Other provisions specifically foresee the need to grant a guarantee contract. This is the case of those special Italian laws that impose the creation of State guarantees122. Moreover, those situations in which the law establishes the joint and several liability of one person for the debt of another are generally considered "fideiussione ex lege" by courts and scholars. This is the case of certain managers, liable for the obligation undertaken by them in the name and for the account of the association they are representing (art. 38 Italian CC 123). Other cases of legal guarantees are established in the law for private individuals (art. 50, art. 515, art. 1319, art. 1416 to art.1418 Italian CC) 124•

c) Judicial guarantee

The contract of guarantee can also be originated by a court decision; judicial guarantee. In this case the court imposes the obligation to provide a guarantee on the ground of a legal provision in order to maintain a right or

privilege set by law (see art. 119 Italian c.p.c.; art. 167, art. 260, art. 261, art. 491 Spanish CC or art. 64, art. 529 LECiv) 125• It can therefore be as-

sumed that a judicial guarantee is a particular type of legal guarantee which requires by law the intervention of the court. Every judicial guarantee is a legal guarantee but not all legal guarantees are dependent on the courts to decide on their creation.

122Moscati, 94 ff; Bozzi/Rescigno, 209. For a deep study and list of explained examples of statutory guarantees see: Giusti, 56 ff. and Petti, 37-46.

123Art. 38 Italian CC: "Third persons can enforce their rights against the common assets of the association for obligations undertaken by the person representing it. Persons who have acted in the name and for the account of the association are also personally liable in solido for such obligations". ("Per le obbligazioni assunte dalle persone che rappresentano l'associazione i terzi possono far valere i loro diritti sul fondo comune. Delle obbligazioni stesse rispondono anche personalmente e solidalmente le persone che hanno agito in nome e per conto dell'associazione"). See Giusti, 58; Piazza 1985, 726. Court decisions: Cass. 25 October 1969 no. 3502, FI, 1970, I, 2536:"La responsabilita personale assunta ope legis per il fatto stesso di avere operato e contratto con terzi nell 'esercizio di una funzione rappresentativa e, comunque, in nome e per conto di un'associazione, va concepita come una forma di fideiussione ex lege, avente una funzione di garanzia per i terzi contraenti estranei all'associazione"; Cass. 19 April 1973 no.

1138, FI, 1973, I, 2054; Cass. 26 Feb. 1985 no. 1655 FI, 1985, I, 672: "la responsabilita personale, e solidale con quella dell'associazione non riconosciuta, della persona o delle persone che hanno agito in nome e per conto dell'associazione medesima si configura come una forma di fideiussione ex lege".

124 For longer explanations see: Giusti, 64.

125 Petti, 46; Bozzi, La fideiussione, 1995, 31 ; Guilarte, 62 ff. ; Santamaria, 858; Castan, 668 ; Carrasco, Cordero and Marin, 98.

50 Chapter 2: The contract ofguarantee

2. Legal regulation on consensual, statutory andjudicial guarantees

Conventional, statutory and judicial guarantees all give origin to an obligation to provide a guarantee. This obligation will only be considered fulfilled provided certain conditions are observed. The specific requirements and legal effects for the validity of this obligation are clearly established in Italian and Spanish civil codes. First, art. 1943 Italian CC 126 and art. 1828 127 Spanish CC set up the main requirements that the presented guarantor must fulfil in order to consider the obligation as performed. Moreover, a more specific regulation on the legal and judicial guarantees is contained in arts. 1854-1856 Spanish CC.

a) Requirements regarding the guarantor

The debtor must present a guarantor who is of full capacity and has sufficient assets to eventually fulfill the obligation he secures (art. 1943 par. 1 Italian CC and art. 1828 par. 1 Spanish CC). If the creditor does not accept a guarantor that objectively covers the requirements, the debtor is discharged of his obligation to provide a guarantor. In that case, if the guarantor has not revoked his offer and the debtor defaults on payment, then the creditor shall not afterwards be entitled to demand payment from the guarantor. His behaviour served as conclusive evidence of the refutation of the guarantor's offer.

With regard to the acceptance of the guarantor by the creditor, a guarantee which is offered by a bank should always be adequate. Hence it cannot be rejected as being insufficient128• If a plurality of guarantors guarantee the debt joint and severally, it should be taken as being an adequate guarantee if one of the guarantors fulfils the requirement of solvability129•

b) Alternatives to the legal or judicial duty to provide a guarantor

It may be the case that a party is legally bound to provide guarantee by statutory provision or by judicial decision. If this person is unable to obtain

126Art. 1943 Italian CC: "A debtor who is bound to furnish a surety shall select a person not lacking capacity who owns sufficient property to guarantee the obligation, and who has or elects a domicile within the jurisdiction of the court of appeals where the guarantee is to be undertaken. If the guarantor becomes insolvent, another one shall be furnished, unless the surety was a person selected by the creditor".

127Art. 1828 Spanish CC: "A person obligated to provide a guarantor must present a person with capacity to bind himself and having sufficient assets to respond for the obligation he guarantees. The guarantor shall be understood to be subject to the jurisdiction of the court where this obligation must be performed".

128Carrasco, Cordero and Marin, 98.

129Perez Alvarez, prefers a minimum requirement of two solvent joint and several coguarantors (Perez Alvarez, 142; also Carrasco, Cordero and Marin, 98).

a guarantee, then he may give a pledge or a mortgage which is sufficient to meet his obligation (art. 1855 Spanish CC). There is no parallel provision to be found within Italian law. However, the same outcome can be achieved by the analogous application of art. 2743 Italian CC.

c) Substitution ofthe insolvent guarantor

130

In the event of the first guarantor being insolvent , the creditor may demand that another solvent131 guarantor be provided, except in the case that a precise person had been chosen by the parties for his specific qualities (art. 1943 par. 2 Italian CC and art. 1829 Spanish CC). This right of the creditor to demand another guarantor is retained until the creditor requests for payment and aims at providing protection for the creditor. Therefore, if the debt had been secured by a plurality of joint and several co-guarantors, the insolvency of one of them does not provide a sufficient basis for the creditor to demand the appointment of a new guarantor132. The same applies if the debt is guaranteed by a solvent sub-guarantor. However, if this sub-guarantor becomes insolvent the debtor must provide a pledge or a mortgage as a consequence of the analogous application of art. 1855 Spanish CC133. Hence, within consensual guarantees the risk of insolvency of the guarantor/sub-guarantor is assumed by the debtor.

d) Jurisdiction applicable to the guarantor

According to Italian and Spanish Civil Codes, the guarantor shall be understood to be subject to the jurisdiction of the court in which this obligation must be performed (see art. 1943 par. 1 in fine Italian CC and art.

134

1828 par. 2 Spanish CC) · This provisions are understood to be overruled by the provisions contained in the EC Council Regulation No 44/2001 of

22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation) 1351136·

130In this context, "insolvency" must be understood as being of a factual nature; when the guarantor cannot fulfil his payments. It is not necessary to wait until the guarantor has been declared insolvent as a result of an insolvency procedure.

131A ,,solvent guarantor" is understood as in art. 1828 Spanish CC: "[...] a person with capacity to bind himself and having sufficient assets to respond for the obligation he secures[ ... ]".

132Perez Alvarez, 142.

133Carrasco, Cordero and Marin, 99.

134Art. 1828 and art. 1829 Spanish CC are applicable to all cases in which there is an obligation to provide a guarantor (conventional, statutory and judicial); Guilarte, 140 ff. ;

Perez Alvarez, 261.

135Official Journal L 012, 16/01/2001 P. 0001 - 0023.

There are no formal requirements to which the offer must adhere140. The Italian and the Spanish civil codes only require the explicit constitution of

The will of the guarantor to assume the guarantee obligation does not need to be in a written format, but it must be clearly and unambiguously expressed143. However, the oral form is not to be recommended and in fact it is almost unknown in practice due to the difficulties of proof.

The guarantee obligation is a heavy liability for the guarantor to bear. It is therefore necessary to be sure that the guarantor understands the meaning of his obligation and that he desires to be bound to its full extent. The express assumption must therefore have regard to the will of the guarantor to be liable vis-a-vis the creditor144. It must also have regard to the elements which are required to determine its contents (i.e. the person being

guaranteed, the obligation being guaranteed and the limits of the obligation assumed145).

The need to make an express declaration serves to ensure that the guarantor conducts a careful analysis of the consequences that such an obligation may have146. The creditor must also be confident that the guarantor

140The reason for this absence of formal requirements for the valid conclusion of the guarantee can be found in Roman law (see: Jones, 138; Cohan, 220).

141Art. 1937 Italian CC: "The will to provide a guarantee must be express" ("La volonta di prestare fideiussione deve essere espressa").

142Art. 1827 par. 1: "The guarantee will not be presumed: it shall be express and it cannot be extent to more than its content" ("La fianza no se presume: debe ser expresa y no puede extenderse a mas de lo contenido en ella"). The wording of this provision follows art. 2015 French, Belgian and Luxemburgian CC. Art. 628 Portuguese CC also follows this principle.

143Cass. 26 September 1979 no. 4961, GI 1980, I, 1, 1545; Guilarte, 1990, 124. Even if the underlying contract must be concluded in writing, the guarantee does not require to be concluded in this manner. By contrast in § 766 German CC the declaration of will by the guarantor must be given in writing unless for commercial guarantees (see § 350 German Comm.C.). However, the word guarantee (Biirgschaft or biirgen do not need to be expressly mentioned if the will of the guarantor to guarantee is clear enough. See

Horn/Staudinger, on§ 765 no. 3.

144"Verpflichtungswille" in Germany: See Horn/Staudinger, on§ 765 no. 2.

145Guilarte, 124. See: Cass. 9 May 1988 no. 3400, BBTC, 1989, II, 434. In France the guarantor's declaration of will must contain his signature and a hand written statement of the maximum guaranteed amount (art. 1326 French CC:"[ ...] titre qui comporte la signature de celui qui souscrit cet engagement ainsi que la mention, ecrite par lui-meme, de la somme ou de la quantite en toutes lettres et en chiffres''.

146The importance of this contract is usually expressed by the words "afianza y pagaras" (guarantee and you will pay) in Spanish legal tradition. See Cass. 12 May 1942,