учебный год 2023 / Drobnig, Personal Security

Chapter 2: Dependent Personal Security (Suretyship Guarantees)

has been expressly or impliedly assigned along with the secured claim (O’Donovan and Phillips no. 10-176).

16.In FRANCE, contrary to the rules on assignment of claims, court practice had held that the dependent personal security can not be transmitted automatically as an accessory contract to the new creditor upon an assignment. Rather, the dependent personal security was extinguished upon sale of a rented building by the secured lessor (Cass.com. 26 Oct. 1999, D. 2000, 224, note Ayne`s) or even after a merger-absorption of the secured creditor (Cass.civ. 28 Sept. 2004, JCP E 2005, no. 14 p. 619). It was considered that firstly the assignment of these contracts is generally not recognised in FRENCH law and that secondly the dependent personal security is concluded in consideration of the person (“intuitus personae”) and can not be extended outside its limits (CC arts. 2013 and 2015 (since 2006: CC arts. 2290 and 2292)). This opinion has recently been reversed by a plenary decision of the Court of Cassation (for sale of rented buildings: Cass.ass.pl n. 6 Dec. 2004, D. 2005, 227, note Ayne`s; also for merger-acquisition: Cass.com. 8 Nov. 2005, in JCP E 2006 II, no. 1000, note Legeais). According to the path-breaking decision of December 2004, the change of creditor is not essential for the contract of security in so far as the terms of the engagement of the security provider are the same. The dependent security is considered as a necessary accessory of the contract of rent which is itself by law (cf. CC art. 1743) accessory to a contract of sale of a building.

III. Exception upon Discharge of Debtor in Insolvency Proceedings and Comparable Events

A.Insolvency Proceedings

17.In no European country is the security provider released by virtue of the debtor’s insolvency (AUSTRIA: Bankruptcy Act § 151 and Composition Act § 48; BELGIUM: Bankruptcy Act of 8 Aug. 1997, last modified in 2005, arts. 21 § 1 and 35 § 4; however, there is a partial or full discharge of a consumer security provider if its engagement is disproportionate in relation to its income and assets: Judicial Composition Act of 1997 art. 80 para 3; Cass. 16 Nov. 2001, JLMB 2001, 1731; Lebon, Borgtocht nos. 1-7; in the context of the Collective Debt Rescheduling Act of 5 July 1998: Dirix and De Corte no. 421; DENMARK: Pedersen, Kaution 106 ss.; ENGLISH Insolvency Act sec. 281 para 7; FINLAND: LDepGuar § 21, RP 189/1998 rd 58 ss.; FRANCE: Ccom art. L 63114 II for enterprise insolvency and CC art. 2308 para 2 as proposed by the Grimaldi Commission for insolvency of individuals; since Law no. 2005-845 of 26 July 2005 on Safeguard of Enterprises this is true even if the creditor omits to declare its claim at the opening of the insolvency procedure (Ccom art. L 622-26); GERMAN Insolvency Statute § 254 para 2 sent. 1; GREECE: Filios II/I § 127, fn. 29 at p. 89; ITALY: Cass. 17 July 2003 no. 11200, Giust.civ.Mass. 2003, 1709 s.; Cass. 27 June 1998 no. 6355, Fallim 1999, 525; LUXEMBOURG: Ravarani, Rapport Luxembourgeois 437-438; NETHERLANDS: Bankruptcy Act art. 241, 300 and 340 para 3; SCOTLAND: Bankruptcy (Scotland) Act sec. 60; SWEDEN: Walin, Borgen 157 ss.). In SWEDISH law it is required that the creditor has to take all necessary steps to make the debtor pay, but he need not wait for the bankruptcy of the debtor before performance can be claimed from the security provider (Gorton, Suretyship 592 fn. 31).

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18.Which effect has the avoidance of a performance made by the debtor in the suspecct period and afterwards duly avoided, upon personal security securing the avoided performance? In GERMANY the monetary claim underlying the returned performance is revived and both accessory and non-accessory security rights of any type for the claim are also revived (Frankfurter Kommentar/Dauernheim § 144 no. 3; CA Frankfurt/Main 25 Nov. 2003, ZIP 2004, 271). In GREECE it has been held that a security is valid when provided in favour of a bankrupt debtor, even though any unilateral act reducing the latter’s property, including an abstract acknowledgement of debt, is null in regard to the creditors when done during the suspect period, since it remains valid between the creditor and the debtor and subsequently the former can turn against the security provider and demand payment of the debt (cf. CA Athens 5511/1975, NoB 24, 85; Geor- giades-Stathopoulos AK/Vrellis art. 850 no. 12).

19.In GERMANY it is held that even the disappearance of a debtor company, if due to insufficient assets, does not discharge the provider of a dependent security; rather, the security is maintained as an independent obligation and can then be assigned as such

(BGH 25 Nov. 1981, BGHZ 82, 323, 327 s.; Reinicke and Tiedtke, B4rgschaftsrecht no. 126).

B.Transfer Moratorium

20.The AUSTRIAN Supreme Court has held that an Austrian security provider of a claim against a Hungarian debtor cannot invoke vis- -vis the Austrian creditor a transfer

moratorium issued by the Hungarian government (OGH 5 Sept. 1934, SZ 16 no. 162,

p. 451 s.).

C.Voluntary Arrangements between the Debtor and its Creditors

21.According to DUTCH, GERMAN and GREEK statute law as well as PORTUGUESE and SPANISH case law an arrangement between the debtor and its creditors to avoid bankruptcy proceedings or a moratorium as well as a rescheduling agreement of a nonprofessional debtor do not release the security provider (DUTCH Bankruptcy Act art. 160 and 272 no. 5; GERMAN Statute on Insolvency § 254 para 2 sent. 1; GREECE: cf. Commercial Law art. 643; Georgiades-Stathopoulos AK/Vrellis art. 853 no. 29; PORTUGAL: Insolvency Code arts. 63, 81 para 2 and 245). However, if the creditor has accepted the arrangement, the security provider is released (STJ 19 April 2001, 329/01 www.dgsi.pt; STJ 18 Nov. 1999, 859/99 www.dgsi.pt (no discharge by moratorium); SPAIN: TS 16 Nov. 1991, RAJ 1991 no. 8407; TS 7 June 1983, RAJ 1983 no. 3450; TS 6 Oct. 1986, RAJ 1986 no. 5241). Also from ITALIAN statutory law it can be inferred that

a voluntary agreement in bankruptcy between the debtor and its creditors does not release the security provider (L.fall art. 140 para 3; art. 184; cf. Cass. 6 Aug. 2002 no. 11771, Giust.civ.Mass. 2002, 1479). In GERMANY it is expressly provided that, while the security provider is not released vis- -vis the creditor (cf. supra), the debtor is released as against the security provider (Insolvency Statute § 254 para 2 sent. 2), so that recourse against the debtor is excluded. Corresponding rules probably also exist in other countries since otherwise the debtor’s (partial) release would not be effective. In GREECE, however, the security provider who pays to the creditor part of the debt,

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participates in the insolvency procedure as creditor entitled to partial reimbursement (cf. Commercial Law art. 641 sent. 2; Georgiades § 3 no. 213).

22.In ENGLAND voluntary arrangements under Part VIII of the Insolvency Act 1986 regularly release the security provider because they are based on the parties’s consent and thus the common law rules on variation of the principal contract (see below at IV) apply (Johnson v. Davies [1999] Ch 117 (CFI)); only if the creditor expressly reserves his rights against the security provider, the latter will not be released (Andrews and Millett no. 9-014). In FRANCE the same solution is in case of partial release of the debtor commonly admitted by court practice (Cass.com. 5 May 2004, Bull.civ. 2004 IV no. 84 p. 87; contra for release of debts: Cass.com. 13 Nov. 1996, JCP E 1997, II no. 903, note Legeais; Simler no. 478), even if the security provider was excluded from the arrangement about debt releases and delays: the principle of good faith in contracting has to be respected. But the Law on Safeguard of Enterprises no. 2005-845 of 26 July 2005 now expressly recognizes the release of the security provider subsequently to the debtor’s release in the proce´dure de conciliation (Ccom art. L 611-10 para 3).

D.No Release of the Security Provider despite Debtor’s Discharge

23.According to FRENCH consumer law the security provider is not discharged even after the partial release of the consumer debtor during the insolvency procedure (Simler no. 719). The security provider has only the right to be informed about the opening of this procedure (ConsC art. L 331-3) and may not be deprived of its minimal resources (CC art. 2024 sent. 2 (since 2006: FRENCH CC art. 2301 sent. 2)).

24.The GERMAN Statute on Insolvency allows consumer debtors under certain conditions to obtain release from almost all existing obligations six years after termination of an insolvency procedure (cf. §§ 286-303, especially § 287 para 2 and § 300 para 1). But according to § 301 para 2 sent. 1, security providers may not invoke this release vis- -vis the creditor, although they have no recourse against the debtor (ibidem sent. 2).

25.The BELGIAN legislator is presently preparing an amendment to the Bankruptcy Act under which in specific situations the privilege of a discharged bankrupt trader would be extended to its security provider.

IV. Agreement Aggravating the Secured Obligation

A.Generally

26.According to AUSTRIAN, BELGIAN, DANISH, FINNISH, FRENCH, GERMAN and LUXEMBOURGIAN law as well as GREEK, ITALIAN and SPANISH case law, agreements between the creditor and the debtor to increase the extent, to aggravate the conditions and terms or to predate the maturity of the secured obligations agreed upon after the security provider had assumed the security do not bind the latter (AUSTRIA: Rummel/Gamerith § 1353 no. 4; Schwimann/Mader and Faber § 1351 no. 14; DEN-

MARK: Pedersen, Kaution 79 s.; FINLAND: LDepGuar § 8 para 1; RP 189/1998 rd 40 s.; FRENCH, BELGIAN and LUXEMBOURGIAN CC arts. 2013 and 2015 (since 2006: FRENCH CC arts. 2290 and 2292); BELGIUM: Van Quickenborne no. 241 ss.; FRANCE: Simler nos. 462 ss.; GERMAN CC § 767 para 1 sent. 3; GREECE: CA Thessaloniki 2539/ 1989, Arm 43, 986; Georgiades § 3 no. 111; ITALY: CC art. 1941 para 1 and 3; Giusti 141

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ss., 150 s.; Cass. 20 Feb. 1999 no. 1427, Giur.it. 1999 I 1576; SPAIN: CA Madrid 26 Jan. 1995, AC 1995 no. 148).

27.By contrast, under ENGLISH law any material variation of the terms of the contract for the secured obligation will even discharge the security provider (Holme v. Brunskill (1878) 3 QBD 495 (CFI); Chitty/Whittaker no 44-089). A security provider will remain liable, however, if it assents to the variation, unless after the variation the contract for the secured obligation is no longer within the general purview of the original dependent security; in this case there must be a new contract of security (cf. Trade Indemnity Co Ltd v. Workington Harbour and Dock Board [1937] AC 1 (HL); Triodos Bank NV v. Dobbs

[2005] 2 CLC 95 (CA)). The same rule as to the discharge of the security provider by reason of a variation of the terms of the contract for the secured obligation applies in IRELAND (MacEnroe v AIB [1980] ILRM 171 (SC); White 545 s.), unless the variation is limited to a severable part of the contract.

B.Details

28.GERMAN CC § 767 para 1 sent. 3 provides that the obligation of the security provider is not increased by any legal transaction entered into by the debtor after the assumption of the dependent personal security. Consequently, the security provider is not bound by any legal transaction that worsens its position, unless there is only a minor change that does not affect the substance of the secured obligation and that therefore, according to bona fides, appears to be reasonable for the security provider (BGH 1 March 1962, WM 1962, 701; Palandt/Sprau § 767 no. 3; Erman/Herrmann § 767 no. 9). In the NETHERLANDS, a special rule is laid down in CC art. 7:861 para 4. A non-professional security provider is not bound by future obligations arising from a legal act, which the creditor has performed without being obliged to do so, after he had become aware of circumstances which have considerably diminished the possibility of recovering from the debtor. This rule does not apply if the security provider explicitly consented to the legal act or unless this act could not be postponed (Blomkwist no. 29).

C.In Particular: Extension of Time

a.Discharge

29.In ENGLAND, IRELAND and SCOTLAND the security provider is also discharged if the creditor gives additional time to the debtor (ENGLAND: Swire v. Redman (1876) 1

QBD 536 (CFI); Andrews and Millett no. 9-029; IRELAND: White 545; SCOTLAND: Stair/Clark no. 965), because this would affect the security provider’s right to pay off the creditor and then to sue the debtor in the name of the creditor. The security provider remains liable under ENGLISH law, however, if the creditor, when it postpones the debtor’s payment date or in cases of a release of the principal debtor, notifies the principal debtor that it reserves its rights against the security provider (cf. Greene King

v. Stanley [2001] EWCA Civ 1966 (CA); O’Donovan and Phillips nos. 6-66 ss.) Also according to SPANISH CC art. 1851 “an extension (of time) granted to the debtor by the creditor without the security provider’s consent extinguishes the security”. An express consent is not necessary if the security provider already knew about it at the time of assumption of the security (TS 8 May 1984, RAJ 1984 no. 2399). Consequently, the

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SPANISH Supreme Court has declared art. 1851 as not applicable in the case of security for future or conditional debts (TS 31 Oct. 1984, RAJ 1984 no. 5153; TS 8 May 1984, RAJ 1984 no. 2399; TS 7 Jan. 1981, RAJ 1981 no. 3399).

b.No Discharge

30.By contrast, according to AUSTRIAN courts and writers an extension of time to the debtor does not release the security provider (OGH 4 May 2005, JBl. 2005, 722, 724 s.; OGH 6 May 1954, JZ 1954, 455 no. 312; Rummel/Gamerith § 1353 no. 4). Also according to FRENCH and BELGIAN CC art. 2039 (since 2006: FRENCH CC art. 2316) and PORTUGUESE case law the extension of time granted to the debtor by the creditor does not discharge the security provider (PORTUGAL: STJ 24 Jan. 1989, 77015 www.dgsi.pt). The security provider may also profit from the postponement of the due date, but can equally well waive the right to profit from this postponement (BELGIUM: Van Quickenborne nos. 326-329; FRANCE: Simler nos. 464 ss.). Pursuant to a minority FRENCH opinion CC art. 2039 (since 2006: FRENCH CC art. 2316) is applied also to the security provider with solidary liability (Simler no. 465), although the strict application of the rules on solidarity would exclude this solution (cf. FRENCH and BELGIAN CC art. 2021 (since 2006: FRENCH CC art. 2298)). As CC art. 2039 (since 2006: FRENCH CC art. 2316) is not compulsory, the parties can agree otherwise and discharge the security provider if the latter does not give its consent to the extension of time granted to the debtor by the creditor (Simler no. 469).

(de la Mata; Dr. Poulsen)

Article 2:103: Debtor’s Defences Available to the Security Provider

(1)As against the creditor, the security provider may invoke any defence of the debtor with respect to the existence, validity, enforceability and terms of the secured obligation, even if it is no longer available to the debtor due to acts or omissions of the debtor occurring after the security became effective.

(2)The security provider may not invoke the debtor’s right to withhold performance under PECL Article 9:201 if the debtor is no longer entitled to invoke it.

(3)The security provider may not invoke the lack of capacity of the debtor, whether a natural person or a legal entity, or the non-existence of the debtor, if a legal entity, if the relevant facts were known to the security provider at the time when the security became effective.

(4)As long as the debtor is entitled to avoid the contract from which the secured obligation arises on a ground other than those mentioned in the preceding paragraph and has not exercised that right, the security provider is entitled to refuse performance.

(5)The preceding paragraph applies with appropriate adaptations if the secured obligation is subject to set-off.

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Comments

A.General Remark

1. Article 2:103 supplements Article 2:102 by clarifying another aspect of the dependency of the security upon the secured claim, i.e. the debtor’s defences which are available to the security provider.

B.The Principle – Para (1)

2.The main rule is laid down in the first sentence of para (1): “any defence” available to the debtor may be invoked by the security provider. “Defence” includes any right of the debtor to retain performance (cf., however, para (2) and infra no. 8) or to terminate a contract due to non-performance by the creditor. This general rule is in keeping with the principle laid down in Article 2:102 (1).

3.However, an important qualification to the principle of dependency is established by the last half-sentence of para (1): Any defence that originally had existed but which was lost later due to acts or omissions of the debtor can nevertheless be relied upon by the security provider if the loss occurred after the security became effective. Examples are a loss of a defence due to a waiver by the debtor; or the omission to raise the defence before it becomes time-barred. The rationale of this exception is to protect the security provider’s expectancy to be able to continue to rely on any defence of the debtor which existed at the time the security became effective.

4.Existence of secured obligation. The secured obligation may not have come into existence, especially if a security had been assumed for a future or a conditional obligation. In such a case, legally the security itself has not come into existence; but still, the appearance of a security, such as a document on a security agreement may be there and the creditor may invoke it. Of course, the apparent security provider can invoke the nullity of the document.

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5.Correspondingly, the secured obligation may have arisen but may thereafter have been duly paid by the debtor or a third person. In this case as well, the security provider may counter any possible claim by the creditor by relying on the extinction of the secured obligation.

6.Validity of secured obligation. An invalidity of the secured claim may have a variety of causes, e.g. of a personal nature or related to the subject matter of the contract from which the secured claim arises. The debtor may be stricken by an incapacity which is unknown to the security provider (so that para (3) does not apply). The underlying contract may run counter to a legal prohibition and therefore be void (cf. PECL Articles 15:101) or be declared to have no effect (Article 15:102 (1)).

7.Enforceability of the secured obligation. The unenforceability of an obligation usually gives the debtor a right to refuse performance. The most important example are socalled natural obligations, especially if the period of prescription of the secured obligation has run. According to PECL Article 14:501 (1), after expiry of the period of prescription “the debtor is entitled to refuse performance”. According to Article 2:103 (1), the security provider may invoke this defence of the debtor, whether or not the debtor itself had already invoked it. If, however, the security provider had already performed the prescribed obligation, it cannot reclaim its performance merely because the period of prescription had expired (Article 14:501 (2)).

C.Right to Withhold Performance – Para (2)

8. The second paragraph specifies the principle expressed in para (1) in two respects. Paragraph (2) assumes that the debtor under the general rules of PECL has had a right to withhold performance to the creditor, e.g. because the latter at the time when the security provider had assumed the security had not performed its obligations in time. The provision implies that the security provider may invoke the debtor’s right of withholding performance in order to withhold its own performance to the creditor. If later the debtor had performed, then the security provider is no longer allowed to invoke that defence and refuse performance to the creditor. This case differs from the exception dealt with in para (1): In the latter case, the debtor had caused by acts or omissions the loss of defences, whereas para (2) deals with a case where the creditor’s act had caused the loss of the debtor’s defence.

D.Debtor’s Lack of Capacity – Para (3)

9. Many countries establish one exception to the principle, which relates to defects or lack of full capacity of the debtor and, in the case of a debtor legal entity, also the lack of legal personality. However, these incapacities or the non-existence of a legal entity must have been known to the security provider at the time when the security became effective (on the meaning of this term, cf. supra Comment no. 8 on Article 2:102). The underlying assumption is that in these cases the security serves the purpose of supplying an important

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element to overcome the economic consequences resulting from the debtor’s “personal defect”. But the provider of the security must have willingly incurred this risk. Paragraph

(3) lays down this rule.

10. The consequences which any such lack of full capacity or of legal personality has for the security provider’s recourse against the debtor are laid down in Article 2:113 (4).

E.Debtor’s Unexercised Rights of Avoidance – Para (4)

11.The common feature of paras (4) and (5) is that the debtor is entitled to exercise rights of avoidance or set-off but has not done so. Since in general the security provider is not entitled to exercise those rights because of their personal character, but, on the other hand, should not suffer from the debtor’s passivity, some substitute must be designed.

12.According to para (4), the security provider is entitled to refuse its performance where the debtor has not exercised a right of avoidance to which it is entitled. Examples are a right to avoid the contract which is the basis for a monetary claim by the creditor on the ground of a threat committed by the creditor or a mistake of the debtor. The granting of a right of refusing performance is a compromise: on the one hand, the security provider should not be entitled to exercise the debtor’s right of avoidance since this is based upon a personal decision of the debtor but, on the other hand, it should not be disadvantaged by the debtor’s non-exercise of a right which by virtue of the principle of dependency is to the security provider’s benefit.

F.Unexercised Rights of Set-Off – Para (5)

13.The reasons given in preceding no. 12 apply equally if the debtor has a right of setoff against the creditor’s claim but has not exercised it.

14.The same reasons apply as well when the creditor also has a right of set-off against the debtor, as usually happens when the debtor has such a right. They also apply if exceptionally only the creditor is entitled to set off, but not the debtor.

G.Effectuation

15.In order to facilitate the effective realization of the rights enumerated in Article 2:103, the security provider has not only a right towards the secured debtor but has even a duty of inquiry according to Article 2:112 (1). Further, the security provider is obliged to raise defences which were communicated by the debtor or which were otherwise known to the security provider (Article 2:112 (2)).

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H.Consumer as Security Provider

a.Dependent Personal Security

16. If a consumer has assumed a dependent personal security, Article 2:103 becomes mandatory in favour of the security provider by virtue of Article 4:102 (2).

b.Other Types of Personal Security

17.Paragraphs (1) and (2). From the point of view of a co-debtorship for security purposes, paras (1) and (2) allow a security provider to invoke a defence inherent in the debt even in cases where a co-debtor as such had lost this defence due to acts which it had committed after the security became effective. This rule goes beyond PECL Article 10:111 (1) sent. 1. This “excess” is then partly “corrected” by para (2). Consequently, if applied to a consumer co-debtor for security purposes by virtue of Article 4:102 (1), the combined effect of applying paras (1) and (2) is beneficial for the consumer.

18.If a consumer provides an independent personal security, the same result as set out in preceding no. 17 is achieved by virtue of Article 4:106 (c): the consumer is enabled to invoke defences rooted in an underlying transaction which under the general rules of Chapter 3 the provider of an independent personal security is unable to invoke.

19.Paragraph (3). Generally, any form of incapacity or even legal inexistence of the debtor, whether a natural person or legal entity, does not affect the obligations of the provider of an independent personal security towards the creditor. In the light of these considerations, a consumer provider of independent security is by virtue of Article 4:106 (c) bound by Article 2:103 (3), since its position is not worsened by the application of that provision.

20.The position of a consumer co-debtor for security purposes, however, is different. PECL Article 10:111 (1) sent. 1 allows a co-debtor to invoke a defence inherent in the debt; the incapacity of the debtor whose obligation is secured clearly fulfills this criterion. By contrast, the application of Article 2:103 (3), generally speaking, does not allow that co-debtor to invoke those incapacities, so that this provision in effect diminishes its position as compared to that of a non-consumer co-debtor. Nor is this diminution counterbalanced by the requirement of knowledge established in the last half-sentence. The absence of such knowledge in specific cases would benefit both a provider of a dependent personal security and a consumer co-debtor for security purposes.

21.Paragraphs (4) and (5). For the consumer security provider of an independent personal security, paras (4) and (5) offer remedies which are not available to it under Chapter 3. Consequently, there can be no objection to the application of these provisions in favour of a consumer provider of an independent personal security according to Article 4:106 (c).

22.The same conclusion applies to a consumer’s co-debtorship for security purposes: Paragraph (4) allows a consumer co-debtor for security purposes to invoke a personal

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defence of the principal debtor to avoid the contract giving rise to the secured obligation. According to PECL Article 10:111 (1) sent. 1, such a remedy is not available to a codebtor (cf. Comments on PECL Article 10:111). Paragraph (4) (as applied by virtue of Article 4:102 (1)) therefore improves the position of the consumer co-debtor for security purposes. And para (5) goes beyond PECL Article 10:107 (1) since it allows the co-debtor to rely on the principal debtor’s defence of set-off, although that defence had not yet been exercised and, as a personal defence under PECL Article 10:111 (1) sent. 1, cannot be exercised by the co-debtor. By making these defences available to a consumer co-debtor for security purposes, this consumer co-debtor improves its position and may enjoy the benefits to which a consumer is entitled under paras (4) and (5). This improvement is due to the reference to Chapter 2 which is contained in Article 4:102 (1).

23. Mandatory character of consumer protection rules. In all instances in which the provisions of Article 2:103 are applicable, these obtain a mandatory character in favour of the consumer by virtue of Article 4:102 (2).

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