учебный год 2023 / Drobnig, Principles of European Law of Personal Security
.pdfOur 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
