учебный год 2023 / Drobnig, Personal Security

Chapter 4: Special Rules for Personal Security of Consumers

sidered as not included in the contract. The remaining clauses shall be integrated and interpreted by the judge, who shall modify the rights and duties of the parties in case of subsistence of the contract and also the consequences of its eventual invalidity in case of considerable prejudice to the consumer. Law 7/1998 on General Contract Terms art. 9 para 2 makes also reference to the partial nullity (only of the clauses or conditions declared invalid according to the Law) and establishes the duty of the court to clarify the validity of the contract in these cases or to declare the nullity of the whole contract if one of its essential elements (according to SPANISH CC art. 1261 consent, object and cause) is affected by this nullity.

C.Unenforceability

14.In FRANCE the professional creditor cannot enforce the security contract if the engagement of the provider of dependent security was manifestly disproportionate to its financial capacity and its income, unless at the time of the requested performance the latter is able to perform the obligation (for consumer credit: ConsC art. L 313-10, even if the debtor is a professional: ConsC art. L 341-4).

III. Deviations to the Benefit of the Consumer Security Provider or Consumer in General

15.Deviations to the benefit of the consumer security provider are allowed in DANISH and SPANISH law (DENMARK: Karnov/Kristoffersen 5486 fn. 160; SPANISH CC art. 6 para 2). In GERMANY and GREECE, although there is no special provision to that effect, it follows from the general notion of freedom of contract, that deviations which are favourable for the consumer are always possible. In PORTUGAL the same is true (cf. ConsProtA art. 16 para 1; for a specific example see art. 4 para 2). Similarly in SPAIN Law 26/1991 (on doorstep transactions) art. 9 regards as valid contractual clauses which deviate from the law to the advantage of the consumer. In ENGLAND and SCOTLAND, the provisions of the Unfair Terms in Consumer Contracts Regulations 1999 apply only to contractual terms that are detrimental to the consumer (reg. 5 para 1) (but cf. national notes to Art. 4:101 no. 4).

16.Exceptionally the FRENCH rules relating to all credit types (ConsC arts. L 341-1 ss.), to consumer credit (ConsC arts. L 313-7 ss.) and to doorstep transactions (ConsC arts. L 121-23 ss.) exclude any deviations even if they are favourable for the consumer.

(de la Mata/Dr. Fiorentini)

Article 4:103: Creditor’s Precontractual Obligation of Information

(1)Before a security is granted, the creditor must explain to the intending security provider

(a)the general effect of the intended security; and

(b)the special risks to which the security provider may according to the information accessible to the creditor be exposed in view of the financial situation of the debtor.

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(2)If the creditor knows or has reason to know that due to a relationship of trust and confidence between the debtor and the security provider there is a significant risk that the security provider is not acting freely or with adequate information, the creditor must ascertain that the security provider has received independent advice.

(3)If the information or independent advice required by the preceding paragraphs is not given at least five days before the security provider signs its offer or the contract of security, the offer can be withdrawn or the contract can be avoided by the security provider within a reasonable time after receipt of the information or the independent advice. For this purpose five working days is regarded as a reasonable time unless the circumstances suggest otherwise.

(4)If contrary to paragraph (1) or (2) no information or independent advice is given, the offer can be withdrawn or the contract can be avoided by the security provider at any time.

(5)If the security provider withdraws its offer or avoids the contract according to the preceding paragraphs, the return of benefits received by the parties is governed by PECL Article 4:115 or by the general rules on unjustified enrichment.

Comments

A.Need for Protection

1.In view of the risk which any security provider incurs by assuming a personal security of whatever kind, its interest in self-protection should inspire it to obtain as much information as possible from the debtor about its economic situation. Private persons and even more so business partners often know or at least often will or should be able to find out such information.

2.Experience in virtually all member states shows, however, that there are many private individuals who either close their eyes to the potential risks or who are unable to obtain relevant information. A few legislators and courts in some countries have obliged the creditor in certain circumstances to reveal to the intending security provider the debtor’s financial situation. This should make the security provider aware of the risk which it may incur by assuming the personal security. This, again, is a protective rule for consumer security providers, especially close relatives of the debtor who often are ignorant of, or blind to, the debtor’s economic situation because they are moved by the desire to help and sentiments of kinship and benevolence. It is therefore necessary to establish specific rules aiming at protecting the security provider by making additional information available to it so that it can better evaluate the risk which it incurs by assuming a personal security.

3.Such assistance is the more necessary since relatives or friends of a private debtor (who very often also is a consumer) usually assume a personal security without remu-

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neration. In effect, they “donate” their credit and risk losing major portions of, or even all, their assets.

B.Information and Advice for the Security Provider

a.Creditor’s Information

4.Paragraph (1) specifies the information that has to be disclosed by the creditor to the security provider.

5.Letter (a) of para (1) does not deal, like lit. (b), with the subjective risks inherent in the debtor, but with the general objective legal and economic risks that are connected with a dependent personal security. The creditor must start from the assumption that consumer security providers are not familiar with the far-reaching effects of assuming any personal security. In particular, an intending security provider must be made aware that it will assume a potential debt for which it may be liable with all its assets. The practical effects of this abstract rule must clearly be impressed upon the mind of the intending security provider. This must be done in such a way that the latter becomes clearly and fully aware of the very real risk to which it exposes itself by assuming the personal security.

6.Letter (b) of para (1) deals with the special personal risks which are inherent in the financial position of the debtor. Professional creditors usually will be able, either on the basis of earlier dealings with the debtor or else by virtue of investigations, to evaluate the economic capacity of their debtor. All presently available information on the economic potential of the debtor, especially its present assets (whether encumbered or not) and its earning capacity, must be utilised. These data are already relevant for the creditor’s decision whether or not to grant a credit to the debtor. On this basis the creditor can and must provide a complete picture of the financial situation of the debtor to the intending security provider.

7.In the case of middleor even long-term credits, also the investigations on the debtor and consequently the information to the intending security must be even more extensive and careful. Of course, nobody can, and is expected to, make prophecies. However, those potential developments which can be relatively clearly be foreshadowed must also be disclosed. This refers to data like the age and health situation of the debtor and consequences which these may have for its future economic situation.

8.The creditor’s obligation of disclosure is qualified by the words “information accessible to the creditor”. The qualifying term “accessible” must be understood subjectively as meaning all the relevant information about the debtor of which the creditor disposes at the time of contracting the security. According to the drafting history accessibility does not prejudice the issue whether the relevant information must also be accessible to the security provider. If the creditor due to binding rules of professional, especially bank secrecy is prevented from divulging all relevant information to which it has access to the security provider, it must attempt to obtain the debtor’s consent for

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passing the information to the security provider or must bear the consequences of this subjective inability that are spelt out in paras (3)-(5). Such a disability must be disclosed to the intending security provider so that it can look for other sources or for independent advice according to para (2). An omission of such a disclosure may expose the creditor to the obligation to compensate any damage caused to the security provider.

b.Independent Advice

9.Paragraph (2) deals with a special situation in which the creditor is obliged to ascertain that the intending security provider receives independent advice from a third person.

10.Such recourse to a source of independent advice is required if the creditor “knows or has reason to know” that the security provider “is not acting freely or with adequate information” in assuming the security. If the creditor’s knowledge is alleged, this will require adequate proof. By contrast, “reason to know” is a mixed issue of law and fact: The interested party must prove the knowledge by the creditor of such facts that allow to draw the inference that the creditor ought to have known of a relationship of trust and confidence between the debtor and the security provider.

11.A relationship of trust and confidence between security provider and debtor as such does not meet the requirement of para (2). There are millions of such relationships, especially in well-functioning (legal or factual) families. The members of such a family may have acquired or preserved personal independence and experience with respect to financial matters, especially by the independent administration of their financial affairs. However, there are probably more families where no member has experience of this kind and of the dimension involved, or only one of the spouses. Experience also suggests that usually children, even if they have reached the age of majority, do not appreciate financial risks of greater dimension. The same may also be true of sick or old people, depending upon the individual circumstances. If both the security provider and the debtor are members of a relationship of the latter type, then there is obviously a significant risk that the security provider is not acting freely or is acting without adequate information.

12.If the requirements mentioned in the preceding two paragraphs are fulfilled, then the creditor must ascertain that the security provider has received “independent advice” with respect to the assumption of the security required by the creditor. In practice this means that the creditor must request the intending security provider to obtain advice from an independent third party. The creditor’s legal advisor obviously would not qualify for this purpose. Independent advice may be rendered by consumer organisations or bodies providing legal assistance. In important or complicated cases, advice by independent lawyers may be necessary. The costs will have to be borne by the security provider or the debtor.

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C.Sanctions

13.Paragraphs (3) to (5) provide the sanctions if the information required by para (1) or the independent advice required by para (2) have been furnished late or have not been furnished at all. In these circumstances the consumer security provider is regarded as having assumed its security improvidently. These sanctions apply, whether or not the consumer security provider in fact suffered a disadvantage.

14.Paragraphs (3) and (4) deal with two different, although related fact patterns: paragraph (3) applies if the information or independent advice is given, but is not given within the required time limit; by contrast, para (4) applies if no information or independent advice at all is furnished.

15.According to para (3) the information or independent advice required by paras (1) and (2) must be furnished to the security provider “at least five days” before it signs its offer of security or the security contract. Five days should suffice to review the required information or independent advice; in the case of contracts for larger amounts, usually negotiations take more time so that in fact a longer period of time may be available to the security provider.

16.If the required time span of five days is not observed, the consumer security provider can withdraw its offer of security or avoid the security contract within a “reasonable” period after having received the information or independent advice. This span of reasonable time is under normal circumstances five working days; however, the circumstances may suggest a shorter or longer period (sent. 2). This period is more flexible than the corresponding time span fixed by the first sentence, since the intending security provider cannot foresee when it will receive the draft of the offer or contract of security.

17.If no information or independent advice is given, the intending security provider can at any time withdraw its offer or can avoid the contract (para (4)). This rule must be understood in a broad sense: it must also apply if information is given, but turns out to be obviously insufficient so that it is not helpful for the intending security provider or even misleads it as to the circumstances that have been relevant for its decision to assume the security.

18.Paragraph (5) will in practice be of limited relevance. In the early stage it is unlikely that any performances will have been rendered by any of the parties. However, in the cases addressed by para (4), where no information or advice at all has been given and therefore the contract can be avoided at any time, performances may well have been rendered. The return of such performances is governed by the rules of unjustified enrichment as provisionally laid down in PECL Article 4:115.

D.Mandatory Provision

19. According to Article 4:102 (2), Article 4:103 is a mandatory provision in favour of the consumer security provider.

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National Notes

V. Sanctions . . . . . . . . . . . . . . . . . . . . . . . . nos. 44-47

I. Different Bases of Creditor’s Precontractual Duties of Information

1.Precontractual duties of information of creditors towards consumer providers of security are based upon different legal concepts in the various member states. Some member states have enacted specific consumer protection provisions in order to regulate such information duties (infra sub II), very often such information requirements are also derived from the application of general principles of law (infra sub III), while sometimes also the rules on error are applied in order to deal with situations in which no precontractual information had been provided by the creditor (infra sub IV). In a number of member states, several of these concepts are applied simultaneously; for instance, precontractual information requirements may follow both from special consumer protection provisions and from more general principles.

2.In AUSTRIA, precontractual information requirements follow from special consumer protection provisions (§§ 25a ss. ConsProtA, cf. infra no. 18).

3.Precontractual information requirements in BELGIAN law are laid down in special consumer protection provisions (ConsCredA art. 34, cf. infra no. 19) and can be derived from general principles of law (cf. infra no. 28).

4.In DENMARK, precontractual information requirements are based upon the principle of good faith (ContrA § 36, cf. infra no. 29).

5.Under ENGLISH law, there are both precontractual information requirements laid down in special consumer protection provisions (esp. ConsCredA sec. 105 para 5, cf. infra no. 20) and precontractual duties of the creditor derived from the principles of undue influence and constructive notice (cf. infra no. 30).

6.In FINLAND, precontractual information requirements follow from special consumer protection provisions (LDepGuar § 12, cf. infra no. 21) and from the operation of general principles of law (infra no. 31).

7.In FRANCE, there are special consumer protection provisions concerning precontractual information requirements (ConsC art. L 313-7 ss., cf. infra no. 22), but also duties of the creditor based upon the principle of good faith (cf. infra no. 32).

8.GERMAN law bases precontractual information requirements of the creditor primarily

upon the principle of good faith, but also upon the rules on mistake (cf. infra no. 33).

9.In GREECE, the principle of good faith is regarded as the single basis of precontractual information requirements (cf. infra no. 34).

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10.In IRELAND, precontractual information requirements follow both from special consumer protection provisions (ConsCredA sec. 30, cf. infra no. 23) and from the application of general rules of law (cf. infra no. 35).

11.In ITALY, some precontractual information requirements are contained in special consumer protection provisions (ConsC arts. 2, cf. infra no. 24), while others follow from legislation applicable for all kinds of security providers and other general rules of law (cf. infra no. 36).

12.In LUXEMBOURG, precontractual information requirements can become relevant in limited circumstances for the rules on mistake (cf. infra no. 42)

13.In the NETHERLANDS, precontractual information requirements typically are dealt with in connection with the rules on mistake (cf. infra no. 43); additionally, some precontractual information requirements based upon general rules of law are suggested (cf. infra no. 37).

14.In SCOTLAND, there are both precontractual information requirements which are laid down in special consumer protection provisions (esp. ConsCredA sec. 105 para 5, cf. infra nos. 25, 20) and precontractual information requirements of the creditor based upon the principle of good faith (cf. infra no. 38).

15.Under SPANISH law, precontractual information requirements follow from the principle of good faith (cf. infra no. 39).

16.In SWEDEN, some special consumer protection provisions contain precontractual information requirements (ConsCredA §§ 6, 7, cf. infra no. 26), while in other cases such duties of the creditor are based upon general principles (ContrA § 36, cf. infra no. 40).

II. Specific Rules on Creditor’s Precontractual Duties of Information towards Consumer Security Providers

17.Most member states agree that special protection especially by way of information duties of the creditor must be given to the consumer security provider who more often than not lacks business experience; the degree of protection provided under specific consumer protection rules under the different legal systems, however, varies considerably. For the sanctions in case of a non-compliance with these duties, see generally infra nos. 44 ss.

18.AUSTRIA enacted in 1997 a series of interconnected provisions on information duties: § 25a ConsProtA obliges professional credit providers to hand to spouses as co-debtors or one acting as surety a document informing them about the risks of solidary liability; according to § 25b para 2 the provider of a personal security, whether dependent or independent, has to be informed by the creditor about the spouse’s default; non-obser- vance of this duty implies that the security provider is not liable for interest and costs that arise after the debtor’s default; the most important provision in practice is § 25c: the creditor has to inform a consumer who becomes a co-debtor or a (dependent or independent) security provider about the economic position of the debtor if it is, or should be, aware that the debtor probably will be unable (or only partly able) to pay its obligation (sent. 1). If the creditor omits this information the security provider will only be liable if it would have assumed its obligation in spite of this information (sent. 2). The Supreme Court has held: if the creditor urges assumption of a personal security this

indicates its doubts as to the solvency of the debtor (OGH 22 Dec 2003, JBl. 2004, 522 at p. 524; OGH 25 July 2000, SZ 73 no. 121 at p. 68); individual information is required, whereas a general form does not suffice (OGH 26 Jan. 2006, JZ 2006, 454, 455); the

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practice of the court is not quite uniform as to whether information by the creditor is required even if the security provider is already informed; prevailing practice supports repetition since this more strongly impresses the security provider (OGH 22 Dec. 2003, JBl. 2004, 522 at 525; OGH 25 July 2000, supra at p. 68; discussion and less strict view in OGH 21 July 2005, BA 2006, 206 at 208); no information is necessary if the security provider himself had offered its engagement, participated in the intensive negotiation of the credit and had earlier business experience (OGH 20 Oct. 1999, BA 2000, 527 at p. 531; OGH 22 Oct. 2001, BA 2002, 499 at p. 501); beyond the letter of § 25c, the Supreme Court allows a mere reduction of the security provider’s obligation (OGH 25 July 2000, supra at p. 69 s.)

19.In BELGIUM, ConsCredA art. 34 lays down a precontractual duty of information in favour of security providers for a credit granted to a consumer, without distinguishing between consumer and other security providers or between different types of personal security. The creditor must furnish gratuitously in advance to the security provider a copy of the security agreement (and then inform it about the conclusion of the credit agreement). It must also inform the security provider in advance about any modification of the credit agreement (ConsCredA art. 34 para 2).

20.In ENGLAND there are special consumer protective laws introducing a precontractual duty of information of the creditor in favour of consumer security providers (in ENGLAND: persons giving security in relation to a transaction falling under the consumer protection legislation, cf. national notes to Art. 1:101 no. 65) only (ConsCredA sec. 105 para 5; Consumer Credit (Guarantees and Indemnities) Regulations 1983 reg. 3). The information to be given must be in writing and it must also contain a warning “YOU MAY HAVE TO PAY INSTEAD” in capital letters (Part IV of the Schedule to the Consumer Credit (Guarantees and Indemnities) Regulations 1983), whereas the creditor has to supply the security provider with a copy of the security instrument and a copy of the underlying regulated agreement and any documents therein referred to within 12 working days (Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 reg. 2). Moreover, the creditor has to give additional information about creditor and debtor as well as a statement of the security provider’s rights and duties under the security (ConsCredA sec. 105 para 5; Consumer Credit (Guarantees and Indemnities) Regulations 1983 reg. 3; cf. O’Donovan and Phillips nos. 3-176 s.).

21.In FINLAND LDepGuar § 12 provides a precontractual duty of information in favour of consumer security providers concerning four points: the obligations and specific costs of the dependent personal security assumed; the preconditions for demanding performance from the security provider; and of any other factors that may be of essential importance for the security provider; further, the creditor must inform the consumer security provider about the debtor’s obligations and about its financial circumstances (§ 12 paras 1- 2; RP 189/1998 rd 44 ss.). The written form is optional for this information; if the information is given in writing, this must take place at the latest on the day before the personal security is assumed (LDepGuar § 12 para 1 sent. 2; RP 189/1998 rd 46).

22.In FRANCE an obligation of information in favour of the consumer security provider is implied: both the nature of the security provider’s engagement and the maximum amount of the secured debt must be indicated in the contract of security (for all credit types: ConsC arts. L 341-2 ss.; for consumer credit only: ConsC arts. L 313-7 ss.).

23.In IRELAND, the security provider is entitled under ConsCredA sec. 30 para 1 lit. b to a copy of the document on the agreement from which the secured obligations arise.

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24.In ITALY the general rules of consumer protection enacted by Law 30 July 1998 no. 281, now integrated into ConsC, establish the rights of consumers to adequate information and publicity concerning services provided by professionals (art. 2 para 2 lit. c)) and to fairness and equity in contractual relationships (art. 2 para 2 lit. e)); these rules are considered as applicable to consumer security providers (Petti 484). Among other rules, ConsC art. 5 para 3 states that information for the consumer should be adequate to the chosen technique of comunication; it has to be expressed clearly and intelligibly, also taking into account the modalities of the conclusion of the contract or the characteristics of the area in which the service operates so as to ensure the consumer’s awareness.

25.The situation in SCOTLAND is identical to ENGLISH law (cf. supra no. 20).

26.In SWEDEN there are special provisions introducing a precontractual duty of information of the creditor in favour of consumer security providers: The information to be disclosed must be given in writing before the assumption of the personal security (ConsCredA §§ 6, 7). According to the general guidelines of the Swedish Financial Supervisory Authority about securities in consumer relationships (FFFS 2005:3) the creditor has a precontractual duty to furnish information in writing to consumer security providers. The creditor may be obliged to inform the security provider about all circumstances that the latter may truly expect to know, e.g. extra costs connected with the personal security (ConsCredA §§ 6, 7). According to the general guidelines about securities in consumer relationships (FFFS 2005:3) the creditor is obliged to inform the security provider about the debtor’s economic situation, if this is decreasing for a longer period.

III. Creditor’s Precontractual Duties of Information Based upon General Principles

27.In addition to the specific protective rules for consumer security providers, there is typically also some protection through creditors’ precontractual duties of information which are based upon general principles of law, especially on the principle of good faith or similar concepts. As a general rule, these information duties, however, will be less strict and only available in limited circumstances. For the sanctions in case of a noncompliance with these duties, see generally infra nos. 44 ss.

28.In BELGIUM, the creditor may be obliged to inform the security provider about all circumstances that the latter may truly expect to know, e.g. extra costs contained in the personal security (Cornelis 63; Van Quickenborne no. 423).

29.In DENMARK, a duty to disclose any sort of information about the financial situation of the debtor or the risk that shall be assumed has been acknowledged in literature and in court practice as arising from the principle of good faith (Pedersen, Kaution 23 ss.). Thus, a security in favour of a saving bank assumed by a disordered lady for old and future debts of her stepson was found not to be binding on the basis of ContrA § 36 for a lack of information by the bank (CA Vestre Landsret 30 Aug. 1993, UfR 1993 A 949). The intensity of the duty of information depends upon whether the creditor or the debtor has approached the security provider, the creditor’s duty being higher in the former situation than in the latter (Pedersen, Kaution 23 ss.). Pedersen, ibid. also points out that where undue influence is exercised against a security provider who is not properly informed a security might be invalid on the basis of ContrA §§ 30, 31 or 33 (fraud).

30.In ENGLISH law, wide-ranging supplementary pre-contractual duties are imposed upon the creditor, especially in cases of a relationship of trust and confidence or an emotional

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bond between the security provider and the debtor. In ENGLISH and SCOTS law the existence and exact scope of such duties has been the object of an intense discussion in the past years. While at first it was thought that the legal situation in both jurisdictions followed similar rules (cf. Smith v. Bank of Scotland 1997 SC 111 (HL)), it has now become clear that substantial differences exist (cf. Royal Bank of Scotland v. Wilson 2003

SCLR 716 (CA); Thomson v. Royal Bank of Scotland 2003 SCLR 964 (CFI)). In ENGLISH law, the starting point is that while in certain cases such as the parent – child or solicitor

– client relationship there is even an irrebuttable presumption of undue influence between the parties (cf. O’Donovan and Phillips no. 4-130), in other non-commercial cases where a security provider can show that it reposed trust and confidence in the debtor and that the assumption of security is not readily explicable by the relationships between the parties and calls for an explanation, there is an evidentiary presumption of undue influence between debtor and security provider (Royal Bank of Scotland v. Etridge (No 2) [2002] 2 AC 773, 798 (HL)). This evidentiary presumption, which will however not apply merely because of the existence of a marital relationship (same decision at p. 822), will, if not rebutted, give the security provider a valid defence also against the creditor if the latter is found to have actual or constructive notice of this undue influence (Barclays Bank plc v. O’Brien [1993] 4 AllER 417 (HL); Royal Bank of Scotland v. Etridge (No 2) [2002] 2 AC 773, 798 (HL)). At least in relation to securities provided by one spouse to the other, the courts have developed detailed rules which have to be complied with by creditors in order to rebut a presumption of constructive notice. In all cases where a security is provided by one spouse to the other, its business or a company in which they both had some shareholding the creditor “is put on inquiry” (cf. Royal Bank of Scotland v. Etridge (No 2) [2002] 2 AC 773, 803 (HL)) and has to take steps to bring home to the security provider the risk it is running by standing as surety and advise it to take independent advice (Barclays Bank plc v. O’Brien [1993] 4 AllER 417 (HL)). Moreover there are detailed additional duties, for example requiring the creditor, even if the security provider has received legal advice, to inform the security provider that the creditor requires written confirmation from a solicitor acting for the security provider that the solicitor has fully explained to the security provider the nature of the documents of the security transaction and the practical implications; the creditor also has to advise the security provider that it could appoint a solicitor different from the advisor acting also for both spouses and the creditor has to give information about the other spouse’s financial affairs either directly to the spouse granting security or to the solicitor acting for that spouse (Royal Bank of Scotland v. Etridge (No 2) [2002] 2 AC 773, 803 (HL); cf. also First National Bank v. Achampong [2003] EWCA Civ 487 (CA); Yorkshire Bank v. Tinsley [2004] 3 AllER 463 (CA)).

31.In FINLAND – like in DENMARK and SWEDEN – a security may be regarded as invalid by reason of undue influence if it has been assumed by a security provider without proper precontractual information on the basis of the general principles of ContrA §§ 30, 31 or 33 (fraud) (see also HD 18 Dec. 1996, KKO 1996:149). At least in this regard, the different Nordic Contract Acts are in all SCANDINAVIAN countries more or less uniform since the early 20th century (cf. supra no. 29 and infra no. 40).

32.In FRANCE, it has been held that a duty to disclose any sort of information about the financial situation of the debtor or the risk that shall be assumed can arise from the principle of good faith (CA Versailles 9 Nov. 1995, D. 1996, I.R. 17). A banker has to inform the security provider about essential facts which may influence its consent, e.g.

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