учебный год 2023 / Drobnig, Personal Security

Chapter 2: Dependent Personal Security (Suretyship Guarantees)

A.Survey

1. Article 2:104 (1) and (2) set out those elements of a secured obligation which are, within the financial limits of the dependent security, covered by the latter. By contrast, para (3) excludes for a global security (cf. Article 1:101 (f)) coverage of certain “extraneous” items. Of course, the parties may deviate from any of these restrictions.

B.Principal, Ancillaries and Sums Due Upon Default

2.According to para (1) the dependent security primarily covers, apart from the principal, also contractual interest (lit. (a)) as ancillary obligation. In addition, the normal items that will arise if a debtor defaults will also be covered since a dependent security is designed to cover such consequential damage, unless otherwise agreed. The typical items are

–default interest (lit. (a)); and/or

–damages and/or an agreed sum of money or a penalty (where allowed) which fall due on the debtor’s non-performance (lit. (b)); and

–reasonable extra-judicial costs of recovery of the preceding items (lit. (c)).

3.Two items, scil. contractual and default interest, are not qualified. Indeed, these items will be determined by fixed rates. These rates may be agreed upon by the parties or, if no agreement had been reached, by law. For default interest, PECL Article 9:508 (1) provides a specific rule: the rate of default interest is determined by the average commercial bank short-term lending rate to prime borrowers prevailing for the contractual currency of payment at the place where payment is due. Additional damages may be recovered (Article 9:508 (2)).

4.The same is true for any compensation which the debtor may owe to the creditor upon any non-performance of a contractual obligation. Such compensation may take the form of damages (cf. PECL Article 9:501 ss.) or payment of an agreed sum of money or, where allowed, a penalty.

5.By contrast, extra-judicial costs for recovery of the aforementioned items may only be demanded if they are “reasonable”. Where fixed scales for such costs exist, these must be observed. In the absence of such scales, average costs for average efforts must be considered to be reasonable. In both cases, the fixed scales and the reasonableness of average costs must be determined according to the rules and customs prevailing at the place where the services are to be rendered.

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C.Costs and Expenses of Legal Proceedings and Executions

6. According to para (2), also costs and expenses of legal proceedings and of judicial executions are covered. However, in this case it is necessary for the creditor to inform the security provider in due time, so that the latter is enabled to avert these expenses by performing the security.

D.Maximum Limit

7. It goes without saying that the aforementioned items of ancillaries in the broadest sense of the word, i.e. including all the items covered in preceding nos. 2-6, are secured only within the maximum limit of a security. If this limit is surpassed and the security provider makes full payment to the debtor, the following issue arises: to which parts of the secured obligation should this performance be attributed since the various elements of the secured debt may be subject to differing rules, especially with respecct to prescription. PECL Art. 7:109 (4) provides that a payment is to be appropriated, first to expenses, secondly, to interest, and thirdly, to the principal; however, the creditor may make a different appropriation. Of course, the parties can agree otherwise, e.g. by extending the security to cover fully (or partly) all or some of the aforementioned ancillaries.

E.Exclusions and Extensions

8. Items not mentioned in paras (1) and (2) and in the preceding comments are not covered by law. One example is a claim for repayment of a loan on the basis of unjust enrichment by the creditor if, for whatever reason, the secured obligation is void or avoided. Of course, the parties may agree otherwise, cf. Article 1:103. An agreement providing not only for the repayment of a loan according to the terms of the valid loan contract, but also that claims for repayment of any advances made if the loan contract is void shall be secured would not constitute a deviation detrimental to the security provider within the meaning of Article 4:102 (2), since this would rather constitute a definition of the subject matter of the contract of security. Generally, any type of principal obligation can be made the object of dependent security; this would include also restitutionary and other non-contractual obligations. Of course, it has to be ascertained in these situations whether the contractual security might also be affected by the factors resulting in the ineffectiveness of the loan contract.

F. Exclusion of Non-Personal and Non-Contractual Secured Obligations from Global Security

9. In order to limit the risks of global securities, para (3) provides that only contractual obligations directly incurred by the debtor towards the creditor are covered. This provision excludes, in particular, the coverage of claims against the debtor which have

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been assigned to the creditor after the global security had been assumed. In addition, non-contractual claims are excluded from global security. Again, the parties are free to agree otherwise, cf. Article 1:103.

G.Consumer as Security Provider

10.Dependent personal security. If a consumer has assumed a dependent personal security, Article 2:104 becomes mandatory in favour of the security provider by virtue of Article 4:102 (2).

11.Other types of personal security. The provisions of Article 2:104 (1) and (2) are fully applicable to a consumer’s independent personal security (cf. Article 4:106 (c)) and to a consumer’s co-debtorship for security purposes (cf. Article 4:102 (1)). A slight qualification is necessary for the words “if any” in para (1) relating to the indication of a maximum amount of the security. According to Article 4:106 (a), the amount of a consumer security provider’s security must always be limited, and the limitation, if the parties have not provided for it, is to be effected according to Article 2:102 (3). Therefore, in the present context the words “if any”are irrelevant.

12.By virtue of the references in Article 4:106 (c) and Article 4:102 (1), also paragraph

(3) of Article 2:104 is applicable where a consumer assumes an independent personal security or a co-debtorship for security purposes. As in the case of a consumer provider of a dependent security, an agreement which according to its terms purports to cover all the debtor’s obligations towards the creditor or the debit balance of a current account (cf. the definition of a global security in Article 1:101 (f)), is restricted to cover obligations which originated in contracts between the debtor and the creditor. An additional restriction in favour of consumer security providers follows from Article 4:106 (a), according to which global securities of consumers must have a maximum limit, which either has been agreed by the parties or has to be determined according to Articles 4:106 (a) juncto 2:102 (3).

13.In the present context, Article 2:104 is mandatory in favour of the consumer debtor, cf. Article 4:102 (2). And in the context of a consumer security provider’s co-debt- orship for security purposes the term “debtor” in Article 2:104 means the debtor whose obligation is secured.

National Notes

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Article 2:104: Coverage of Security

1.In all legal systems a dependent security covers, of course, the secured obligation. But there are some differences regarding the coverage of other claims of the creditor against the debtor.

I. Ancillary Obligations – General Rules

2.BELGIAN, FRENCH, LUXEMBOURGIAN and SPANISH law differentiate between definite and indefinite dependent securities. A dependent security is “indefinite” if only the principal obligation is mentioned in the contract of security, no other limitation (maximum amount) of the security being agreed. By contrast, a dependent security is definite if security provider and creditor have specifically agreed upon the extent of the security (see e.g. FRANCE: Cabrillac/Mouly 129; BELGIUM: Van Quickenborne nos. 257 ss.). An indefinite dependent security secures the principal obligation and all its ancil-

lary obligations (BELGIAN, FRENCH and LUXEMBOURGIAN CC art. 2016 para 1 (since 2006: FRENCH CC art. 2293 para 1) and SPANISH CC art. 1827 para 2).

3.FRENCH case law originally required for non-commercial dependent securities that the liability for ancillaries must be expressly mentioned in the dependent security provider’s hand-written declaration in accordance with FRENCH CC art. 1326 (Cass.civ. 22 June 1983, Banque 1984, 860). The Commercial Chamber of the FRENCH Supreme Court (Cass.com. 16 March 1999, JCP G 1999, I no. 156 (1)), however, held that such a handwritten declaration is not necessary. Despite earlier decisions to the contrary (cf. Cass.- civ. 13 Oct. 1999, JCP G 2000, II no. 1037), the Civil Chamber of the Supreme Court has now accepted the view of the Commercial Chamber (Cass.civ. 29 Oct. 2002, JCP G 2002, II no. 10187, note Legeais), CC art. 1326 is no longer applied to the liability for ancillaries. The proposals of the Grimaldi Commission would confirm this case law (cf. the proposed CC art. 2300 (1)).

4.In FRENCH consumer legislation, on the other hand, stricter formal requirements were developed (cf. ConsC arts. L 313-7 and L 341-2, see infra national notes to Art. 4:105).

5.There are two general rules on ancillary obligations in GREECE: According to CC art. 852, in cases of doubt a provider of dependent security shall not be liable for contractually agreed ancillary obligations which were due and payable at the time the dependent security was provided; and for those contractually agreed ancillary obligations that become due and payable after the assumption he shall be liable only if he was aware of the existence of these obligations (cf. Georgiades-Stathopoulos AK/Vrellis art. 852 no. 1).

6.AUSTRIAN writers similarly distinguish between a limited and a full dependent security, only the latter covering also ancillaries. Dependent securities by banks, in favour of banks and generally among merchants are usually full dependent securities (Rummel/ Gamerith § 1353 no. 5; Schwimann/Mader and Faber § 1353 no. 5).

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II. Various Heads

A.Contractual Interest – Para (1) Lit. (a)

a.The Principle

i.Legal Systems with a Specific Rule

7.The most extensive rule concerning the coverage of contractual interest seems to be FINNISH LDepGuar § 4 para 1: a provider of dependent security is ex lege liable for contractual interest provided the provider of security and the creditor had not agreed otherwise (see also RP 189/1998 rd 35). The same is true for ITALY and PORTUGAL regarding all ancillaries (ITALIAN CC art. 1942; PORTUGUESE CC art. 634; Almeida Costa 770). In BELGIUM, FRANCE, LUXEMBOURG and SPAIN, an indefinite dependent security (supra no. 2) covers contractual interest of the secured obligation since contractual interest is regarded as an ancillary obligation (cf. BELGIUM: Van Quickenborne no. 263; FRANCE: art. 2016 para 1 (since 2006: CC art. 2293 para 1); Piedelie`vre, S ret s 26; LUXEMBOURG: Ravarani, Jurisprudence r cente 901-902; SPAIN: Guilarte Zapatero, Comentarios 132). However, nowadays FRENCH CC art. 2016 para 1 (since 2006: CC art. 2293 para 1) is applied to definite dependent securities as well (Cass.com. 16 March 1999, JCP G 1999, I no. 156 (1)). This solution seems to be confirmed by the Grimaldi Commission’s proposal of a new CC art. 2302, which determines the coverage of the security provider’s liability, irrespective of the indefinite or definite character of the dependent securities.

ii.Legal Systems without a Specific Rule

8.In other legal systems there are no relevant statutory provisions. Consequently, the provider of dependent security is only liable for contractual interest if this is at least

implicitly stipulated in the contract of security (DENMARK: Pedersen, Kaution 48 s.;

ENGLAND: Andrews and Millett no. 6-010; GERMANY: Reinicke and Tiedtke no. 21; Palandt/Sprau § 765 no. 24; GREECE: Georgiades-Stathopoulos AK/Vrellis art. 852 no. 1; SWEDEN: Walin, Borgen 151 ss.). As far as there are formal requirements in these legal systems, they do not prevent such an extension of liability (cf. infra national notes to Art. 4:105). Since for purposes of interpretation especially the surrounding circumstances of the transaction are to be taken into account, contractual interest will often be secured despite the silence of the written agreement (DENMARK: Pedersen, Kaution 48 s.; ENGLAND: Andrews and Millett no. 6-010; Fahey v. MSD Speirs Ltd [1975] 1 NZLR 240 (PC)). In GERMANY and SCOTLAND, it is considered as sufficient that the provider of dependent security knows that the secured obligation bears interest (Erman/Herrmann § 765 no. 7 with further references; however critical Staudinger/Horn § 765 no. 40; cf. similarly for SCOTS law Stair/Eden no. 917). In AUSTRIA a full dependent security (supra no. 6) covers contractual interest (Rummel/Gamerith § 1353 no. 5). AUSTRIAN law establishes a restrictive rule for contractual interest that is overdue: the provider of dependent security is not liable for those portions of such interest which had already been due for some time when the creditor demanded payment from the security provider

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(CC § 1353 sent. 2; cf. the prevailing interpretation of this provision by Schwimann/ Mader and Faber § 1353 no. 2 and Rummel/Gamerith § 1353 no. 5).

b.Implications of Agreed Maximum Amount

9.In ENGLISH and SCOTS law an agreed maximum amount will usually be expressed to relate to the principal sum only and the provider of dependent security is then liable for interest on that sum, unless the maximum is expressed to include interest (ENGLAND:

Dow Banking Corpn v. Mahnakh Spinning and Weaving Corpn and Bank Mellat [1983] 2 Lloyd’s Rep 561 (CFI); SCOTLAND: Stair/Eden no. 917). On the other hand, the provider of dependent security is not liable for interest on parts of the secured debt exceeding the agreed maximum of its dependent security (ENGLAND: Meek v. Wallis

(1872) 27 LT 650 (CFI); SCOTLAND: Commercial Bank of Scotland Ltd v. Pattison’s Trustees (1891) 18 R (SC) 476 (1 Div)). Also in AUSTRIA and ITALY, an agreed maximum amount without further specification is understood as an absolute limit, excluding liability for any amount of interest surpassing the maximum (AUSTRIA: OGH 8 Jan. 1956, SZ 29 no. 5 p. 11; Schwimann/Mader and Faber § 1353 no. 10; ITALY:

CFI Roma 5 June 2003, BBTC 2005 II 71). In GREECE again the declaration of the provider of dependent security must be interpreted restrictively since the maximum amount aims to provide a general limit of its liability (Georgiades § 3 no. 116 and § 4 no. 30).

10.In GERMANY it is disputed whether an agreed maximum amount covers the principal obligation only or contractually agreed interests as well (BGH 17 March 1994, WM 1994, 1064, 1068: no exclusion of interests; contra: Reinicke/Tiedtke no. 24). However, general business terms and conditions according to which an agreed maximum amount does not limit the security provider’s obligation for contractual interests have been held invalid (BGH 18 July 2002, BGHZ 151, 375, 380 ss.). In BELGIUM, it is thought that, if the parties limit the dependent security to a maximum amount that is lower than the secured debt, the security provider will normally be liable for the ancillaries in the same proportion as he is liable for the secured debt. But parties can agree otherwise (Van Quickenborne no. 284).

B.Extra – Judicial Costs of Recovery – Para (1) Lit (c)

11.According to GERMAN CC § 767 para 2 and PORTUGUESE CC art. 634 the provider of dependent security is liable for the expenses of notice which must be paid by the principal debtor to the creditor; the same is true for BELGIUM, FRANCE, ITALY, LUXEMBOURG (CC art. 2016 para 1 (since 2006: FRENCH CC art. 2293 para 1); cf. BELGIUM: Van Quickenborne no. 264; FRANCE: Simler no. 299; ITALY: Giusti 155; LUXEMBOURG: Ravarani, Jurisprudence r cente 901-902) and GREECE (ErmAK/Zepos art. 851 no. 6). By contrast, in SWEDEN the dependent security provider is in dubio not liable for the expenses of notice (Walin, Borgen 153 s.).

C.Other Ancillary Obligations

12.What has been said above about contractual interest is in GERMANY also true for commissions and costs (GERMANY: Palandt/Sprau § 765 no. 24; Staudinger/Horn

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§ 765 no. 40). FINNISH LDepGuar § 4 para 1 extends the liability of the provider of dependent security to other extra costs if there is no other stipulation in the contract. The same is true in BELGIUM, FRANCE and LUXEMBOURG, since the dependent security covers according to CC art. 2016 (since 2006: FRENCH CC art. 2293) the principal debt and all its ancillaries (BELGIUM: Van Quickenborne no. 269; LUXEMBOURG, Ravarani, Jurisprudence r cente 901; FRANCE: Simler no. 304).

D.Obligations due to Debtor’s Fault or Default

a.Default Interests; Claims for Damages due to the Debtor’s Fault – Para (1) Lit. (a)

13.In most European countries the provider of dependent security is, unless otherwise agreed in the contract of security, especially liable for default interests and for claims for damages due to non-performance of the secured obligation (BELGIUM: Van Quickenborne no. 266; ENGLAND: Moschi v. Lep Air Services [1973] AC 331 (HL) (this decision is also relied upon in SCOTLAND, cf. Stair/Eden no. 918); Astilleros Espanoles SA v. Bank of America National Trust & Savings Assocn [1995] 2 Lloyd’s Rep 352 (CA); Andrews and Millett no. 6-030; FRANCE: ConsC arts. L 313-7 and L 341-2 for consumer securities; Cass.civ. 10 May 1988, Bull.civ. 1988 I no. 134 p. 93; Simler no. 300 ss.; GERMANY: BGH 17 May 1994, NJW 1994, 1790; Palandt/Sprau § 767 no. 2; Staudinger/Horn § 767 no. 25; GREECE: Georgiades § 3 no. 115; A.P. 1486/1997, listed in www.dsanet.gr; ITALY: cf. Giusti 154; LUXEMBOURG: Ravarani, Jurisprudence r cente 902; NETHERLANDS: Blomkwist no. 19, p. 37; PORTUGUESE CC art. 634; SPAIN: Guilarte Zapatero, Comen-

tarios 132). Especially in AUSTRIA, a provider of dependent security under a full dependent security (supra no. 6) is liable for default interest (Rummel/Gamerith

§1353 no. 5; Schwimman/Mader and Faber § 1353 no. 5), but not under a limited dependent security (cf. OGH 24 Sept. 1987, SZ 60 no. 185 at p. 276).

14.This principle applies also to all claims for damages in connection with the secured obligation that are based on an action of the debtor after conclusion of the contract of dependent security (GERMANY: BGH 14 July 1988, NJW 1989, 27; Staudinger/Horn

§767 no. 28; GREECE: A.P. 1486/1997, listed in www.dsanet.gr; Georgiades-Stathopou- los AK/Vrellis art. 851 no. 9; ITALY: Giusti 155; LUXEMBOURG: Ravarani, Jurisprudence r cente 902; PORTUGAL: Almeida Costa 770), even after resolution or annulment of the contract (BELGIUM: Van Quickenborne no. 268; FRANCE: Cass.com. 2 Nov. 1994, JCP G 1995 I no. 3851 (13), note Delebecque and Mouly; Simler no. 303; NETHERLANDS: Blomkwist no. 19, p. 37). In GREECE the provider of dependent security is additionally liable for alterations of the principal obligation caused by fortuitous events or by force majeure, provided the debtor bears the respective risk (Geor- giades-Stathopoulos AK/Vrellis art. 851 no. 9).

15.The legal situation is different in the SCANDINAVIAN countries and in the NETHERLANDS: In DENMARK the provider of dependent security is liable for claims for damages caused by the non-performance of the secured obligation (Pedersen, Kaution 49; CA Vestre Landsret 11 Jan. 1971, UfR 1971 A 337) but according to DANISH court practice not for default interest, unless this has been stated in the security agreement (H 18 Jan. 1982, UfR 1982 A 162; CA Vestre Landsret 4 Oct. 1973, UfR 1974 A 198; Pedersen, Kaution 49). The same is true for SWEDEN (Walin, Borgen 151 ss.). If the contract from which the secured debt arises is terminated owing to delay, a consumer

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provider of dependent security is pursuant to the FINNISH LDepGuar § 25 entitled to pay according to the conditions that had prevailed had the debtor not been in delay (RP 189/1998 rd 63).

16.In the NETHERLANDS, the provider of dependent security owes legal interests only over the period that it itself is in default, unless the obligation of the debtor arises from a

tort or non-performance (CC art. 7:856). There may be no derogations from this rule to the detriment of the non-professional provider of dependent security (CC art. 7:862 lit. a)). Interest and cost owed according to art. 8:856 can be claimed irrespective of the expressed maximum (art. CC 7:858).

b.Penalty for Non-Performance of Contract – Para (1) Lit. (b)

17.In BELGIUM, GERMANY, GREECE, ITALY, LUXEMBOURG and the NETHERLANDS a penalty for non-performance of contract is only covered if this has been stipulated in the contract of dependent security (BELGIUM: CA Brussels 20 Jan. 1982, RW 1982-83, 2397; CFI Brussels 27 Sept. 1971, B.R.H. 1972, 2; Van Quickenborne no. 266; GERMANY: BGH 7 June 1982, NJW 1982, 2305; BGH 15 March 1990, WM 1990, 841; GREECE: Georgiades § 3 no. 115; ITALY: Cass. 30 May 1963, no. 1468, Giur.it.Mass. 1963, 502; Giusti 154; LUXEMBOURG: CA Luxembourg 9 Nov. 1993, Pas luxemb XXIX (1993-95) Jur. 293; Ravarani, Jurisprudence r cente 902; NETHERLANDS: Blomkwist no. 19); in deciding whether this is the case, the principles of interpretation are to be applied (GERMANY: cf. Staudinger/Horn § 765 no. 40 and Erman/Herrmann § 765 no. 7).

18.In AUSTRIA, under a full dependent security (supra no. 6), there is liability also for penalties (Rummel/Gamerith § 1353 no. 5; differentiated Schwimann/Mader and Faber § 1353 no. 5). In FRANCE since the leading case of October 2002 (Cass.civ. 29 Oct. 2002, JCP G 2002, II no. 10187, note Legeais) the Civil and Commercial (cf. Cass.com. 6 Feb. 2001, Bull.civ. 2001 IV no. 29 p. 27) Chambers of the Supreme Court consider the penalty clause as automatically covered by the ancillaries designated by CC art. 2016 para 1 – since 2006: CC art. 2293 para 1 – (Larroumet/Franc¸ois no. 161). It seems that in PORTUGUESE and SPANISH law a penalty for non-performance is to be borne by the provider of dependent security as ancillary obligation (PORTUGAL: CC art. 634; Almeida Costa 770; SPAIN: CC art. 1827 para 2; Guilarte Zapatero, Comentarios 133).

E.Costs and Expenses of Legal and Enforcement Proceedings – Para (2)

19.According to GERMAN CC § 767 para 2, ITALIAN CC art. 1942, PORTUGUESE CC art. 634 and GREEK literature the provider of dependent security is, apart from the expenses of notice (see supra no. 11), liable for the expenses of legal action which are owed by the debtor to the creditor. This liability exists regardless of whether the dependent security is solidary or subsidiary and especially does not depend upon any default of the debtor. The provider of dependent security is obliged to pay not only costs that have arisen in a formal proceeding but all costs for recovery owed by the

debtor (GERMANY: Staudinger/Horn § 767 nos. 33 s.; GREECE: Georgiades § 3 no. 115), unless liability is excluded in the contract of dependent security. For a full dependent security (supra no. 6), AUSTRIAN law comes to the same results (Rummel/ Gamerith § 1353 no. 5; Schwimann/Mader and Faber § 1353 no. 5).

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20.By contrast, in ENGLISH, FRENCH, BELGIAN and LUXEMBOURGIAN, DUTCH and

SCOTS law a provider of dependent security is only liable for the costs of a fruitless action against the debtor if the creditor has given notice to the security provider of his intention to sue the debtor (ENGLAND: Baker v. Garrat (1825) 3 Bing 56 = 130 ER 434 (CFI); Colvin v. Buckle (1841) 8 M&W 680 = 151 ER 1212 (CFI); FRENCH, BELGIAN and LUXEMBOURGIAN CC art. 2016 (since 2006: FRENCH CC art. 2293 para 1); FRANCE: CA Pau 9 Febr. 1905, S. 1905, 2, 76; BELGIUM: Van Quickenborne no. 264; NETHERLANDS: CC art. 7:856 para 2; SCOTLAND: Fraser v. Andrew (1831) 9 S 345 (CA); Collier v. Beath (1836) 15 S 195 (CA)). In ENGLAND and SCOTLAND it is further taken into consideration whether upon the true construction of the terms of the security agreement, expenses may fall within the object of the dependent security

(ENGLAND: O’Donovan and Phillips no. 5-59; SCOTLAND: Grant v. Fenton (1853) 15 D 424 (CA)) and whether the expenses incurred were reasonable (SCOTLAND: Struthers v. Dykes (1847) 9 D 1437 (CA); Stair/Eden no. 916). Similarly, according to SPANISH CC art. 1827 para 2 in cases of indefinite dependent securities those costs of suit are covered which arose after the creditor had demanded payment from the provider of dependent security.

21.According to DANISH law the provider of dependent security is not liable for the procedural costs, unless this has been stated in the dependent security (Pedersen, Kaution 49).

F.Claims for Repayment in Case of Nullity of Underlying Contract

22.Express extensions of a dependent personal security to claims for repayment of the capital, if the underlying contract providing for the payment is void, are, generally speaking, recognized (GERMANY: if not expressly agreed, an interpretation of the contract terms is necessary: Staudinger/Horn § 765 nos. 82-85 with references; ITALY: in banking practice, such clauses are widely used and valid, if individually negotiated: CA Torino 27 Oct. 1998, BBTC 2001 II 87; CFI Milano 25 May 2000, ibid. 88; cf. also national notes on Art. 4:102 no. 4). Whether such extensions can validly be fixed by general conditions, is not free from doubt. In ITALY, a corresponding clause in the

model contract drafted by the Italian Bank Association was declared to be void – however, on the basis of a violation of antitrust law (decision of the Bank of Italy no. 55 of 5 May 2005, Bolletino no. 17 of 16 May 2005 p. 97 ss). The GERMAN Federal Supreme Court held a corresponding clause to be compatible with the statutory regime on general clauses (BGH 21 Nov. 1991, NJW 1992, 1234, 1235; approving Staudinger/Horn § 765 nos. 87 s.; more differentiating Reinicke and Tiedtke, B4rgschaftsrecht nos. 4-12).

23.FRENCH courts have repeatedly held that, even if the credit contract as such is void, the debtor’s contractual duty of returning the payment received “survives” the contract; therefore, in that respect also the dependent personal security survives (Cass.com.

2 Nov. 1994, JCP G 1995 I 3851 no. 13 with note Delebecque and Mouly; Cass.com. 4 Feb. 1986, JCP G 1986 IV 100).

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III. Global Security – Para (3)

A.Liability of a Provider of Dependent Security under a Global Security

24.See supra national notes to Art. 1:101 nos. 42-46.

B.Proof of the Secured Claim

25.It has been held in GERMANY and in GREECE that the acknowledgement of the outstanding balance on behalf of the debtor also binds the provider of dependent security: the creditor may rely upon the non-causal acknowledgement of the balance and does not have to assert and prove each account entry, which, along with others, is contained in the outstanding balance (GERMANY: BGH 18 Dec. 2001, ZIP 2002, 297 ss., 298; GREECE: A.P. 1264/1994, EllDik 37, 316; Chrysanthis 299). Regardless of such an acknowledgement, the creditor may assert and prove its account claim by asserting and proving all account entries which led to the outstanding balance (GERMANY: BGH 18 Dec. 2001, ZIP 2002, 297 ss., 298; GREECE: A.P. 46/1984, NoB 33, 232; Kondylis 39 fn. 103).

(Seidel/Hauck)

Article 2:105: Solidary Liability of Security Provider

Unless otherwise agreed (Article 2:106), the liability of the debtor and the security provider is solidary and, accordingly, the creditor has the choice of claiming solidary performance from the debtor or, within the limits of the security, from the security provider.

Comments

1. Introduction. Articles 2:105 and 2:106 deal with the two basic types of liability of a dependent security provider, which is either solidary (Article 2:105) or subsidiary (Article 2:106).

A.The Principle: Solidary Liability

2. Article 2:105 expresses the basic form of the security provider’s liability under these Rules, which is solidary. The term “solidary” which corresponds to “joint and several” in ENGLISH law, is in keeping with the terminology chosen in PECL Chapter 10 Section 1,

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