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Our Sponsors

The project of the Study Group on a European Civil Code represents a research endeavour in legal science of extraordinary magnitude. Without the generous financial support of many organisations its realisation would not have been possible.

Our thanks go first of all to the Deutsche Forschungsgemeinschaft (DFG), which has supplied the lion’s share of the financing including the salaries of the Working Teams based in Germany and the direct travel costs for the meetings of the Coordinating Group and the numerous Advisory Councils. The work of the Dutch Working Teams was financed by the Nederlandse Organisatie voor Wetenschappelijk Onderzoek (NWO).

Further personnel costs were met by the Flemish Fonds voor Wetenschappelijk OnderzoekVlaanderen (FWO), the Onassis-Foundation, the Austrian Fonds zur Fo¨rderung der wissenschaftlichen Forschung and the Fundac¸a˜o Calouste Gulbenkian.

In addition we have consistently been able to fall back on funds made available to the respective organisers of the week long sittings of the Coordinating Group by the relevant university or other sources within the country concerned. It is therefore with the deepest gratitude that I must also mention the Consiglio nazionale forense (Rom) and the Istituto di diritto privato of the Universita` di Roma La Sapienza, which co-financed the meeting in Rome (June 2000). The session in Salzburg (December 2000) was supported by the Austrian Bundesministerium fu¨r Bildung, Wissenschaft und Kultur, the Universita¨t Salzburg and the Institut fu¨r Rechtspolitik of the Universita¨t Salzburg. The discussions in Stockholm (June 2001) were assisted by the Department of Law, Stockholm University, the Supreme Court Justice Edward Cassel’s Foundation and Stiftelsen Juridisk Fakultetslitteratur (SJF). The meeting in Oxford (December 2001) had the support of Shearman & Sterling, the Hulme Trust, Berwin Leighton Paisner and the Oxford University Press (OUP). The session in Valencia (June 2002) was made possible by the Asociacio´n Nacional de Registradores de la Propiedad, Mercantil y Bienes Muebles, the Universitat de Vale`ncia, the Ministerio Espan˜ol de Ciencia y Tecnologı´a, the Facultad de Derecho of the Universitat de Vale`ncia, the Departamento de Derecho Internacional, Departamento de Derecho Civil and the Departamento de Derecho Mercantil «Manuel Broseta Pont» of the Universitat de Vale`ncia, the law firm Cuatrecasas, the Generalitat Valenciana, the Corts Valencianes, the Diputacio´n Provincial de Valencia, the Ayuntamiento de Valencia, the Colegio de Abogados de Valencia and Aranzadi Publishing Company. The subsequent meeting in Oporto (December 2002) was substantially assisted by the Universidade Cato´lica Portuguesa – Centro Regional do Porto. For the week long session in Helsinki (June 2003) we were able to rely on funds from Suomen Kultuurirahasto (Finnish Cultural Foundation), the Niilo Helanderin Sa¨a¨tio¨ (Niilo Helander Foundation), the Suomalainen Lakimeisyhdistys (Finnish Lawyers Association), the Ministry of Justice and the Ministry for Foreign Affairs, the Nordea Bank, Roschier Holmberg Attorneys Ltd., Hannes Snellman Attorneys Ltd., the Department of Private Law and the Institute of International Commercial Law (KATTI) of Helsinki University. The session in Leuven (December 2003) was supported by Katholieke Universiteit Leuven, Faculteit Rechtsgeleerdheid, and the FWO Vlaanderen Fonds voor Wetenschappelijk Onderzoek (Flanders Scientific Research Fund). The meeting of the Group

XI

Our Sponsors

in Warsaw (June 2004) was substantially assisted by the Fundacja Fundusz Wspolpracy

(The Cooperation Fund) and the Faculty of Law and Administration of Warsaw University. The meeting in Milan (December 2004) was supported by the Universita` Bocconi and its

Istituto di diritto comparato, by the Milan Camera di Commercio, by the Associazione Civilisti Italiani and by the Comune di Milano. The meeting in Berlin (June 2005) was made possible by PricewaterhouseCoopers Deutschland AG, Frankfurt/Berlin; Sievert AG & Co., Osnabr4ck, and by Verband deutscher Hypothekenbanken e. V., Berlin. The meeting in Tartu (December 2005) was supported by the University of Tartu, its Faculty of Law, its Institute of Law and its Institute of Private Law, by the Estonian Supreme Court, the Ministry of Justice, the Tartu City Government, Iuridicum Foundation, the Law Offices Concordia, Lepik & Luhaa¨a¨r, Luiga Mody Ha¨a¨l Borenius, Ots & Co, Aivar Pilv, Aare Raig, Raidla & Partners, Sorainen, Tark & Co, Teder Glikman & Partners, Paul Varul, Alvin Ro¨dl & Partner and Lextal Law Firm. The meeting in Oslo (June 2006) was made possible by the kongelige Justisog Politidepartement (The Royal Ministry of Justice), by

Sigvald Bergesen d. y., by hustru Nankis Almennyttige stiftelse, Storebrand and the law firms

Wiersholm and BA-HR. The meeting in Lucerne (December 2006) was sponsored by

Schulthess Publishing Company, by Schweizerischer Nationalfonds and by the Universita¨t Luzern. We thank all of these organisations and institutions for the funds which they made available to us and for the extraordinary warmth of hospitality with which our hosts received us.

Osnabr4ck, January 2007

Christian v. Bar

Preface to this volume

The rules in this Part, as well as the comments and national notes, are the fruit of years of collective efforts by several groups. The groundwork was laid by a working group at the Max-Planck-Institute for foreign and private international law in Hamburg. The group consisted of young devoted academics coming from various European countries and working part-time on the project whose names appear at p. V. The national notes for the rules of this Part were compiled by these researchers in a co-operative manner: while in respect of the national notes for each individual article of the text one or two members assumed the general responsibility for the overall structure which aspires to be an integrated comparison (the names of these members appear at the end of the notes), the references to the individual legal systems of the member states have been elaborated by the members responsible for the jurisdiction concerned. Special thanks for very active over-all collaboration are due to Ole Bçger. The Max-Planck-Institute with its extraordinary library and its other services provided the substantive and intellectual basis for the groundwork.

In addition, we benefited from major inspiration as well as from invaluable oral and written advice from the six members of our Advisory Council. In five two-days sessions held from 2000 to 2005, they brought their academic as well as practical experiences gathered in their home countries to bear on this project and influenced very much the drafting of the rules. Their names also appear at p. V.

The draft rules were also subjected in several sessions to the scrutiny of the members of the Co-ordinating Committee of the Study Group which consists of colleagues from all member states of the EU.

Finally, under the auspices of the EU Commission a session with stakeholders took place in Brussels in April 2005 where practitioners from various circles of business and from groups devoted to consumer protection gave very useful hints.

The national notes purport to state the law as of December 2005, but some later developments could be taken into account.

Hamburg, November 2006

Ulrich Drobnig

XIII

Short Table of Contents

Text of Articles

1

Principles of European Law on Personal Security

 

Text with Comments and Notes

77

Introduction

79

Chapter 1:

 

Common Rules

87

Article 1:101: Definitions

87

Article 1:102: Scope

123

Article 1:103: Freedom of Contract

135

Article 1:104: Creditor’s Acceptance

137

Article 1:105: Interpretation

144

Article 1:106: Co-Debtorship for Security Purposes

147

Article 1:107: Several Security Providers: Solidary Liability

 

Towards Creditor

162

Article 1:108: Several Security Providers: Internal Recourse

170

Article 1:109: Several Security Providers: Recourse Against Debtor

182

Article 1:110: Subsidiary Application of Rules on Solidary Debtors

189

Chapter 2:

 

Dependent Personal Security (Suretyship Guarantees)

195

Article 2:101: Presumption for Dependent Personal Security

195

Article 2:102: Terms and Extent of the Security Provider’s Obligations

198

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

212

Article 2.104: Coverage of Security

227

Article 2:105: Solidary Liability of Security Provider

237

Article 2:106: Subsidiary Liability of Security Provider

240

Article 2:107: Creditor’s Obligations of Notification

250

Article 2:108: Time Limit for Resort to Security

258

Article 2:109: Limiting Security Without Time Limit

270

Article 2:110: Creditor’s Liability

278

Article 2:111: Debtor’s Relief for the Security Provider

287

Article 2:112: Security Provider’s Obligations Before Performance

295

Article 2:113: Security Provider’s Rights After Performance

302

XV

Short Table of Contents

Chapter 3:

 

Independent Personal Security (Indemnities/Independent Guarantees)

319

Introduction

319

Article 3:101: Scope

322

Article 3:102: Security Provider’s Obligations Before Performance

330

Article 3:103: Independent Personal Security on First Demand

339

Article 3:104: Manifestly Abusive or Fraudulent Demand

344

Article 3:105: Security Provider’s Right to Reclaim

352

Article 3:106: Security With or Without Time Limits

360

Article 3:107: Transfer of Security

365

Article 3:108: Security Provider’s Rights After Performance

371

Chapter 4:

 

Special Rules for Personal Security of Consumers

379

Introduction

379

Article 4:101: Scope of Application

381

Article 4:102: Applicable Rules

391

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

398

Article 4:104: Door-to-Door Security Transactions

412

Article 4:105: Form

415

Article 4:106: Nature of Security Provider’s Liability

423

Article 4:107: Creditor’s Obligations of Annual Information

428

Article 4:108: Limiting Security With Time Limit

433

Annexes

439

XVI

 

 

Table of Contents

Foreword

VII

Our Sponsors

XI

Preface to this volume

XIII

Text of Articles

 

English

 

Personal Security

3

Danish

 

Personlige Sikkerheder

13

Dutch

 

Persoonlijke zekerheden

23

French

 

S ret s personnelles

34

German

 

Persçnliche Sicherheiten

45

Italian

 

Garanzie personali

56

Spanish

 

Garant%as personales

66

Principles of European Law on Personal Security

 

Text with Comments and Notes

77

Introduction

79

A.

General Remarks

79

B.

Relation to General Contract Law (PECL)

82

XVII

Table of Contents

Chapter 1:

 

Common Rules

87

Article 1:101: Definitions

87

Comments

 

A.

Personal Security – Litt. (a) and (b)

88

B.

Dependent Personal Security – Lit. (a)

89

C.

Independent Personal Security – Lit. (b)

94

D.

Security Provider – Lit. (c)

96

E.

Debtor – Lit. (d)

96

F.

Co-Debtorship for Security Purposes – Lit. (e)

96

G.

Global Security – Lit. (f)

98

H.

Consumer – Lit. (g)

99

I.

Proprietary Security – Lit. (h)

100

National Notes

 

I.

Personal Security

101

II.

Dependent Personal Security – Lit. (a)

102

III.

Independent Personal Security – Lit. (b)

104

IV.

Content of the Security Provider’s Obligation – Litt. (a) and (b)

107

V.

Security Provider – Lit. (c)

109

VI.

Debtor – Lit. (d)

111

VII. Co-Debtorship for Security Purposes – Lit. (e)

112

VIII.

Global Security – Lit. (f)

113

IX.

Consumer – Lit. (g)

115

X.

Proprietary Security – Lit. (h)

122

Article 1:102: Scope

123

Comments

 

A.

Types of Personal Security Covered

123

B.

Personal Security and Insurance

126

C.

Personal Security and Negotiable Instruments

126

D.

Aspects of Public Law

127

National Notes

 

I.

Typical Personal Securities

128

II.

Atypical Personal Securities

129

III.

Credit Insurance and Guarantee Insurance – Para (2)

132

IV.

The Aval – Para (3)

134

XVIII

 

 

Table of Contents

Article 1:103: Freedom of Contract

135

Comments

135

National Notes

 

I.

Freedom of Contract

136

II.

Specific Mandatory Rules

137

III.

General Mandatory Rules

137

Article 1:104: Creditor’s Acceptance

137

Comments

138

National Notes

139

I.

Personal Security as Contract

140

II.

Beginning of Security Provider’s Obligation

142

III.

Personal Security as Unilateral Contract or Promise

143

Article 1:105: Interpretation

144

Comments

144

National Notes

144

I.

The Principle

145

II.

Exception

147

Article 1:106: Co-Debtorship for Security Purposes

147

Comments

 

A.

General Remarks

148

B.

Criteria for Security Purpose

149

C.

Co-Debtorship and Personal Security Combined

150

D.

Applicable Rules

150

National Notes

151

I.

General

152

II.

Initial Co-Debtorship

152

III.

Subsequent Cumulative Assumption of Another Person’s Debt

153

IV.

Criteria for Security Purpose

155

V.

Co-Debtorship for Security Purposes: Prerequisites and Effects

158

VI.

Additional Rules on Plurality of Debtors

162

XIX