учебный год 2023 / Drobnig, Personal Security

Chapter 2: Dependent Personal Security (Suretyship Guarantees)

the basis of the duty to act in good faith (CC art. 1175 and 1375), ITALIAN case law goes further and recognizes that, even in case of waiver of the right arising for the security provider from CC art. 1956, the security provider is not liable if the creditor grants credit to the debtor knowing that the latter will not be able to repay it (CA Catania 24 March 1999, BBTC 2001 II 699; Cass. 28 Jan. 1998 no. 831, Giur.it. 1998, 1645; Cass. 18 July 1989 no. 3362, BBTC 1989 II 357; Cass. 20 July 1989, no. 3386, Foro it. 1989 I 3100; this trend is supported by scholarly writings: Sacco, Il contratto 801; di Majo 45 ss.; Cantillo 59 ss.).

c.Damages

18.Contrary to earlier decisions, the Commercial Chamber of the FRENCH Supreme Court no longer holds the creditor liable for damages, unless gross negligence has been established (Cass.com. 25 April 2001, JCP E 2001, no. 1276, note Legeais).

IV. Exception to the Duty of Information – cf. Para (3)

19.In BELGIUM and LUXEMBOURG, there is no duty of information if the debtor has all the information himself (BELGIUM: Dirix, Zekerheidsrechten 318; CA Brussels 11 Sept. 1987, T.B.H. 1989, 7 note Devos; LUXEMBOURG: Ravarani, Jurisprudence r cente 917). On the contrary, in FRANCE a duty to give information is not affected by the fact that the provider of dependent security already knows about the development of the debt (cf. Cass.com. 25 May 1993, JCP G 1993, II no. 22147, note Croze; Piedelie`vre, Cautionnement et lutte contre l’exclusion no. 8).

(Hauck)

Article 2:108: Time Limit for Resort to Security

(1)If a time limit has been agreed, directly or indirectly, for resort to a security establishing solidary liability for the security provider, the latter is no longer liable after expiration of the agreed time limit. However, the security provider remains liable if the creditor had requested performance from the security provider after maturity of the secured obligation but before expiration of the time limit for the security.

(2)If a time limit has been agreed, directly or indirectly, for resort to a security establishing subsidiary liability for the security provider, the latter is no longer liable after the expiration of the agreed time limit. However, the security provider remains liable if the creditor

(a)after maturity of the secured obligation, but before expiration of the time limit has informed the security provider about its intention to demand performance of the security and has asserted that it has started to undertake appropriate attempts to obtain satisfaction as required according to Article 2:106 paragraphs (2) and (3); and

(b)informs the security provider every six months about the status of these attempts, if so demanded by the security provider.

(3)If secured obligations fall due upon, or within 14 days before, expiration of the time limit of the security, the request for performance or the information according to paragraphs (1) and

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(2) may be given earlier than provided for in paragraphs (1) and (2), but no more than 14 days before expiration of the time limit of the security.

(4)If the creditor has taken due measures according to the preceding paragraphs, the security provider’s maximum liability is restricted to the amount of the secured obligations as defined in Article 2:104 paragraphs (1) and (2). The relevant time is that at which the agreed time limit expires.

A.General Remarks

1.Provisions on time limits. Articles 2:108 and 2:109 deal with dependent securities with (Article 2:108) or without (Article 2:109) time limits. While Article 2:108 is applicable where the parties have agreed on a time limit for resort to a security, Article 2:109 provides for a possibility to limit the scope of a security in respect of the coverage of future obligations in cases without an agreed time limit. Article 4:108, which is applicable for consumer security providers only, extends this possibility to certain securities with an agreed time limit.

2.Other consequences of agreed time limits. Not all consequences of agreed time limits are spelt out in Articles 2:108 and 2:109. Depending on the type of time limit in question, a main effect is typically to restrict the scope of a security in respect of the coverage of future obligations. As this consequence directly flows from the agreement of the parties and depends on the terms of this agreement, it appears to be neither necessary nor possible to regulate this effect in the text of the Rules. Cf. also infra Comments nos. 22 ss.

*The Comments on Article 2:108 are by Ole Bçger, LL.M.

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B.Types of Time Limits

3.Common features. While the parties can agree on different types of time limits for their security, such time limits share a common objective as means to limit the security provider’s liability, and hence its risk, under the security. Moreover, the existence of any type of agreed time limit for a security typically precludes the possibility to unilaterally limit the security according to Article 2:109. Cf. Comments on Article 2:109 no. 3.

4.Time limits restricting the scope of the security. In one type of time limit, only the scope of the security is limited, e.g. the coverage of the security is limited to secured obligations arising, falling due or fulfilling other requirements until expiration of the agreed time limit (such a time limit could for instance be agreed using the following formula: “This security is valid only for secured obligations arising until August 31”). Thus, even if a security provider assumes a security for obligations of the debtor that at the moment of the creation of the security are not yet in existence and whose scope is not known, especially in cases of global securities, its risk might be limited by excluding such obligations that do not arise or do not fall due or fulfil other requirements within a foreseeable period of time, i.e. before expiration of the agreed time limit. These effects are dealt with infra nos. 22 ss. Such a type of time limit is not subject to Article 2:108, however, since the parties did not agree on a time limit for the creditor’s right to rely on the security vis- -vis the security provider.

5.Time limits for resort to security. The type of time limit covered by Article 2:108 focuses not on the scope of a security, but on the creditor’s possibility to resort to the security. By setting a time limit for resort to the security, whether directly (e.g. “The creditor may rely on this security until May 31”) or indirectly (e.g. “This security expires 6 months after maturity of the secured obligation”), the risk assumed by the security provider in relation to the solvency of the debtor is limited to a period of time which is specified in the agreement or can be indirectly determined, i.e. until expiration of the agreed time limit in question. However, such a time limit typically also affects the scope of the security, i.e. restricts the scope of the security in respect of the coverage of future obligations. Cf. infra no. 24.

6.Both types of time limits independent from each other. It has to be emphasised that these two types of time limits are quite independent from each other. A variety of combinations is possible, depending upon the construction of the agreement of the parties: The parties may have agreed on a time limit restricting the scope of the security, but may at the same time not have intended to restrict the possibility to resort to the security. In special cases there might also be a time limit for resort to the security that does not give rise to a restriction of the scope of the security (cf. infra no. 24). It is also possible to have two separate agreed time limits for a single security: e.g. one restricting the scope of the security to obligations arising until expiration of this time limit, and a second one setting a (subsequent) time limit for resort to the security. In other cases, finally, one and the same reference to a limit may have to be regarded as restricting at the same time the possibility to resort to the security and the scope of the security.

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C.Time Limit for Resort to Security

7.Matter of construction. In accordance with preceding no. 6, the existence of a time limit for resort to a security is, unless clearly set out, largely a matter of construction of the parties’ agreement. If the parties do not expressly refer to a time limit as being one for resort to a security, the following considerations might be of some assistance.

8.Indication for time limit for resort to security. As a rule of thumb, the fact that the personal security in question covers only existing obligations or specific future obligations will be an indication that an agreed time limit constitutes a time limit for resort to the security. In such cases, there seems to be less of a need for a security provider to protect itself against a liability of an unforeseeable amount on the basis of future obligations of the debtor; rather, it is the additional protection of a time limit for resort to the security which limits the period of time during which the security provider assumes the risk of the debtor’s solvency that might be of any interest for the security provider.

9.Date of maturity of secured obligations. A mere reference to the date of maturity of the secured obligations typically does not give rise to a time limit for resort to the security. Otherwise the creditor would lose the protection provided by the personal security if it would not immediately enforce the secured obligation or the security as soon as the secured obligation becomes due.

D.Consequences of Expiration of Time Limit for Resort to Security

10.General rule: extinction of liability. The general rule is that if a time limit has been agreed for resort to a security, the security provider is no longer liable towards the creditor after expiration of the agreed time limit. For contracts of personal security establishing solidary liability, this is provided for in para (1) sent. 1; in cases of subsidiary liability of the security provider para (2) sent. 1 applies. This extinction of liability does not only bar any liability of the security provider under the security for future obligations of the debtor, but it also affects obligations already in existence: the security provider is no longer liable towards the creditor even in relation to obligations covered by its security that have become due by the time the agreed time limit expires.

11.Continuation of liability if additional requirements are fulfilled. The security provider remains liable towards the creditor after the expiration of the agreed time limit only if additional requirements are fulfilled. Generally speaking, only if the creditor has timely acted upon the security in a manner as to hold the security provider liable according to the terms of the security in question the security provider’s liability with respect to existing obligations is not extinguished. The details of the requirements to be fulfilled

in this respect differ between situations of solidary liability of the security provider and those of subsidiary liability of the latter, cf. infra nos. 14 s. and 16 ss.

12. Security provider’s maximum liability determined by para (4). Even if the creditor has timely fulfilled the requirements for the continuation of the security provider’s liability, this liability is restricted. According to para (4), the security provider’s maximum liabil-

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ity is limited to the amount of the secured obligations upon expiration of the agreed time limit. Principal and ancillary obligation as defined in Article 2:104 (1) and (2) are covered, however, only within the further limitation of an agreed maximum amount for the security, if any. For the determination of the maximum amount of the liability, any defences available vis- -vis the creditor at the time at which the agreed time limit expires, have to be taken into account; thus, the amount of secured obligations that are not due yet does not increase the maximum amount of the security provider’s liability.

13. Scope of security restricted according to terms of time limit. Also in case of a time limit for resort to the security, there will typically be an additional restriction of the scope of the security according to the terms of the parties’ agreement. Cf. infra nos. 24 and 27.

E.Continuation of Liability in Case of Solidary Liability

14.Request for performance. If the security provider had assumed solidary liability, the creditor only has to timely request performance from the security provider in order for the latter to remain liable also after expiration of the agreed time limit (para (1) sent. 2). A simple declaration by the creditor suffices; it is not necessary in this context that the creditor commences legal action against the security provider.

15.Time for request. The request is valid only if it is made after maturity of the secured obligation but before expiration of the agreed time limit (para (1) sent. 2). The first requirement, that the request must be made before expiration of the agreed time limit, is the essence of a personal security with a time limit for resort to the security: the security provider assumes the risk of the debtor’s solvency only until the agreed time limit; should the creditor at a later point of time discover that due to the debtor’s insolvency performance can only be expected from the security provider, this is no longer covered by the terms of this security, even if the secured obligation in question came into existence in time. The second requirement as to the time for the request for performance, i.e. that the request must be made after maturity of the secured obligation, has been introduced in order to prevent the request for performance becoming a mere formality for the creditor to be made already at the time of creation of the security: the request can be made in earnest only if the secured obligation is due. Specific provision is made for secured obligations becoming due upon, or within fourteen days before expiration of the time limit, cf. infra no. 21.

F.Continuation of Liability in Case of Subsidiary Liability

16. General. If the security provider is subsidiarily liable, it remains liable even after expiration of the agreed time limit only if the creditor has fulfilled stricter requirements than in the case of solidary liability of the security provider. The rationale is obvious: in the situation of subsidiary liability, the security provider is liable towards the creditor only if the latter has fruitlessly attempted to obtain satisfaction from the debtor or other security providers with solidary liability, if any (cf. Article 2:106). If additionally a time

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limit for resort to the security has been agreed, it follows that the creditor has to show that these requirements have been fulfilled before expiration of the agreed time limit.

17.Appropriate attempts to obtain satisfaction. According to para (2) (a) the creditor must have started to undertake appropriate attempts to obtain satisfaction as required by Article 2:106 (2) and (3). The reference does not only cover the requirements to obtain satisfaction from the debtor or other security providers with solidary liability as provided for in Article 2:106 (2) but also the exceptions provided for in Article 2:106 (3). Thus, in situations where the security provider may not invoke the subsidiary character of its liability vis- -vis the creditor even though the latter has not attempted to obtain satisfaction from the debtor or any other security provider, as the case might be, the creditor does not have to start such attempts for the purposes of Article 2:108 (2) (a) either. It has to be emphasised that the attempts required by para (2) (a) need not be completed – for the purposes of this provision (as opposed to Article 2:106) it is sufficient that the creditor has started to undertake such attempts since demanding (fruitless) completion of these attempts to obtain satisfaction from other sources would be too onerous and time-consuming for the creditor.

18.Information required according to para (2) (a). According to para (2) (a) the creditor firstly has to inform the security provider about its intention to demand performance. In contrast to para (1) sent. 2 no request for performance is necessary since in the situation dealt with by para (2) (a) the security provider might still be able to rely on the subsidiary character of its liability. Additionally, the creditor has to assert that it has started to undertake the attempts described in the preceding paragraph.

19.Time for information. As in the situation of solidary liability of the security provider (cf. supra no. 15), the information required according to para (2) (a) has to be given after maturity of the secured obligation, but before expiration of the agreed time limit. See also for the situation of the secured obligations becoming due upon, or within fourteen days before expiration of the agreed time limit infra no. 21.

20.Information required according to para (2) (b). If the security provider so demands, the creditor also has to inform the security provider every six months about the status of the attempts to obtain satisfaction. This is a continuing obligation, i.e. if the creditor should even after expiration of the agreed time limit fail to comply with this requirement until completion of these attempts, then the security provider is no longer liable towards the creditor.

G.Maturity of Secured Obligations Close to Expiration of Time Limit – Para (3)

21.Modification of time for request or information according to paras (1) and (2). In certain situations, the point of time at which the request has to be made or the information to be given according to paras (1) and (2) does not seem practicable: should the secured obligations become due only upon, or within a short period of time before expiration of the agreed time limit, the security provider might have only a very limited possibility to consider its options before having to turn against the security provider in

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order to avoid the loss of its rights against the latter. Paragraph (3) applies in these situations and makes sure that the creditor has at least a period of fourteen days to make its request or to inform the security provider before the time limit of the security expires.

H.Time Limit Restricting Scope of Security

22. Legal basis. Agreed time limits typically also restrict the scope of the security with respect to the coverage of future obligations. This consequence is not limited to time limits for resort to a security within the meaning of Article 2:108 and it flows directly from the agreement of the parties and is therefore not spelt out in the text of the Rules.

a.Existence of Time Limit Restricting Scope of Security

23.Matter of construction. Whether a reference to a time limit in the agreement of the parties is to be regarded as a time limit that restricts the scope of the security with respect to the coverage of future obligations is once more, unless clearly spelt out by the parties, a matter of construction of the agreement. In general every agreement by the parties including a time limit which has the effect of excluding future obligations – whether these are obligations arising or falling due or fulfilling other requirements after a certain date – from the scope of the security, is to be regarded as a time limit in this sense.

24.Time limits for resort to security. Time limits for resort to the security do typically also have the effect of restricting the scope of the security in the sense of the preceding paragraph. This follows from the fact that where a creditor is bound to resort to the security before expiration of a certain time limit, the creditor will after that point of time no longer be able to rely on the security in respect of any future obligations. There are, however, exceptions to this rule: agreements of the type “This security for all future indebtedness of the debtor towards the creditor expires in respect of each individual obligation secured 6 months after maturity of that obligation” do not provide for a time limit for the security as a whole, thus such time limits do not restrict the scope of the security with respect to the coverage of future obligations.

25.Duration of agreement giving rise to secured obligation as time limit. The mere fact that the agreement from which the secured obligations arise has a time limit should not in itself be regarded as indirectly giving rise to a time limit for the security. It should be noted, however, that even if such securities are regarded as unlimited, in cases where the security is restricted to cover obligations arising from specific contracts the applicability of Article 2:109 is excluded according to para (1) sent. 2, cf. Comments on Article 2:109 no. 9.

b.Restriction of Coverage of Security

26. Effect of time limit. The effect of a time limit for the security is that the scope of security is limited accordingly, i.e. only those secured obligations are covered which are not excluded by virtue of the agreed time limit. The details depend upon the terms of the parties’ agreement: the coverage of the security could be restricted to obligations that

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arise or fall due or fulfil other requirements until that time, whatever the terms of the agreed time limit might be. Since Article 2:109 is inapplicable in any of these cases, there is no possibility for the parties on the basis of that provision to unilaterally set an earlier time limit by giving notice (cf., however, the exception provided for in Article 4:108 for consumer security providers).

27. Restriction of scope of security in case of a time limit for resort to security. In the case of a time limit such as “The creditor may resort to this security until August 31” or “This security expires August 31” it might not be easily determinable from the terms of the time limit whether the security is intended to cover secured obligations that have arisen, but are not due yet at that point of time. It is submitted that in general such time limits within the meaning of Article 2:108 will restrict the liability of the security provider to secured obligations that have fallen due since only in respect of such obligations the requirements of para (1) sent. 2 and para (2) sent. 2 can be fulfilled. The additional restriction of the amount of the security provider’s maximum liability according to Article 2:108 (4), however, will often make a decision on this point unnecessary.

I.Consumer as Security Provider

28.Applicability to all types of consumer security providers. Chapter 4 does not contain any specific provisions on time limits for resort to security; therefore, Article 2:108 is applicable directly and without modifications to consumer providers of dependent security. The same result is achieved for consumer providers of independent security (cf. Article 4:106 (c)) and for consumer security providers in a co-debtorship for security purposes (cf. Article 4:102 (1)). The application of Article 2:108 to the last-mentioned type of consumer security providers is justified because Article 2:108 is favourable to them insofar as this rule provides legal certainty; otherwise it would be necessary to turn to uncertain general principles of contract law in order to determine the scope and the effect of an agreed time limit for resort to security.

29.Mandatory character. By virtue of Article 4:102 (2), Article 2:108 is mandatory in favour of all types of consumer security providers.

National Notes

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I. In General

1.In all member states a distinction has to be made between dependent personal security given for an unlimited time (see infra national notes to Art. 2:109) and dependent personal security given for a fixed time. The proper classification of the dependent security is decisive for the determination of the extent of the security provider’s obligation.

2.The following national notes deal with what may be designated as dependent security for a fixed time or as security with a time limit for resort to the security right. In FRANCE and GERMANY a dependent security for an existing obligation is usually regarded as meaning a dependent security for a fixed time (FRANCE: Simler nos. 771 ss.; GERMANY: BGH 6 May 1997, NJW 1997, 2233), whereas the assumption of a security for future obligations, especially those resulting from a current account, is a hint for the second type (FRANCE: Simler no. 771; GERMANY: BGH 17 Dec. 1987, NJW 1988, 908).

3.According to GREEK and PORTUGUESE court practice, the sole fact that the secured claim is limited in time does not restrict the dependent security to the same time limit, as long as the secured claim has not yet been paid (GREECE: A.P. 463/1994, EEN 62, 332; PORTUGAL: STJ 20 April 1999, 162/99 www.dgsi.pt).

II. Dependent Securities with a Time Limit for the Resort to Security

4.Only some continental legal systems provide expressly for dependent securities that have a time limit for resort to the security (AUSTRIAN CC § 1363 sent. 2; FINNISH LDepGuar § 19 para 2; GERMAN CC § 777; GREEK CC art. 866).

A.Agreement on Time Limit

5.Dependent securities may be limited in time by the parties not only by referring to a calendar date but also by referring to an (uncertain) event or a period of time (GERMANY: BGH 6 May 1997, NJW 1997, 2233 and M4nchKomm/Habersack § 777 no. 7; GREECE: A.P. 463/1994, EEN 62, 335 and Georgiades § 3 no. 194).

B.Consequences upon Expiration of Time Limit

6.Most member states seem to agree that the provider of dependent security is discharged from its obligation when the agreed time limit expires and the creditor did not take action against or at least demand performance from the security provider (DENMARK: H 30 April 2001, UfR 2001 A 1543; Ussing, Kaution 301; Agreement between the Consumer Council and the Financial Council of 17 Sept. 2001; ENGLAND: O’Donovan and Phillips no. 9-24; FINLAND: LDepGuar § 19 para 2; RP 189/1998 rd 57; GERMAN CC § 777 para 1; GREEK CC art. 866; ITALY: Giusti 149 and 253 s.; SPAIN: Guilarte Zapatero, Comentarios 310; Carrasco Perera a.o. 226). GERMAN court practice demands, in addition, that the secured claim must fall due before expiration of the time limit (BGH 14 June 1984, BGHZ 91, 349 at 355 ss.)

7.If however, such conditions precedent to the security provider’s liability are fulfilled, under FRENCH and SPANISH law the time limit serves to freeze the continuing liability

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of the provider of dependent security to the amount at the expiration of the time limit (FRANCE: Simler no. 321 ss.; SPAIN: Carrasco Perera a.o. 226). In SPANISH law it depends upon the wording of each particular dependent security whether liabilities incurred within the time limit of a continuing dependent security, but due and payable only after the dependent security came to an end, fall within the ambit of the security provider’s liability (Carrasco Perera a.o. 226).

8.In BELGIUM and in the NETHERLANDS the expiration of the time limit has the same effect as a unilateral termination of the contract of dependent security by the security provider for the future (BELGIUM: CA Brussels 25 May 1992, JLMB 1993, 870, note de Patoul and Baudoux; T’Kint no. 771; NETHERLANDS: Blomkwist no. 16 at p. 30-31). The provider of dependent security is only liable for those obligations that arose before the expiration date (BELGIUM: T’Kint no. 771; Van Quickenborne no. 253; NETHERLANDS: Blomkwist no. 16 at p. 30-31; SPAIN: Carrasco Perera a.o. 226).

C.Preservation of the Liability of the Provider of Dependent Security

9.The main issues in this context are until which point of time the creditor has to demand performance from the provider of dependent security and in which form.

a.No Differentiation between Solidary and Subsidiary Dependent Securities

10.In AUSTRIA, FINLAND, FRANCE and ITALY, solidary and subsidiary dependent securities are treated equally (AUSTRIAN CC § 1363 sent. 2; FINLAND: RP 189/1998 rd 56; FRANCE: Simler no. 488; ITALY: CC art. 1957; Giusti 281 s.).

11.In ITALY, the provider of dependent security impliedly limited to the term of the secured obligation remains liable even after maturity of the principal obligation, if the creditor has diligently brought suit against the debtor within six months and has diligently pursued it (ITALIAN CC art. 1957 para 1). This provision is also applied if the provider of dependent security has expressly limited the security to the same term as the secured claim; in this case, however, the debtor must be sued within two months (ITALIAN CC art. 1957 para 2 and 3; Giusti 285 ss.). However, ITALIAN courts are agreed that CC art. 1957 does not apply to dependent securities without time limit (Cass. 27 Nov. 2002 no. 16758, Giust.Civ.Mass. 2002, 2059). According to FINNISH LDepGuar § 19 para 2 the creditor loses its rights against the provider of dependent security if it does not demand payment from the latter before expiration of the fixed time. The demand does not have to comply with any form nor does it have to indicate the sum demanded by the creditor (RP 189/1998 rd 57). A corresponding rule has been developed in AUSTRIA, also without distinction as to the type of dependent security (OGH 11 April 1956, JZ 1957, 129 no. 84, obiter dictum; Rummel/Gamerith § 1363 no. 4). The same is true for SPAIN. Since there are no legal provisions preserving the liability under a dependent security after expiration of the time limit, the creditor must ask for performance before that date (Carrasco Perera a.o. 227).

b.Differentiation between Solidary and Subsidiary Dependent Securities

12.Some countries differentiate between solidary and subsidiary dependent securities (GERMAN CC § 777 para 1). Although GREEK CC art. 866 does not contain such a

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