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

Chapter 4: Special Rules for Personal Security of Consumers

that were until December 2000 competent for personal security cases were in agreement on this target but not on the extent nor on the methods to achieve it.

23.According to the practice of the now exclusively competent division XI (for the extremely differential practice of division IX see the summaries of Reinicke and Tiedtke, B4rgschaftsrecht nos. 182-209; Erman/Palm § 138 nos. 90 ss.) dependent personal securities as well as assumptions of debt for security purpose that have been assumed vis- -vis banks or other commercial or professional credit grantors (BGH 13 Nov. 2001, NJW 2002, 746) are presumed to be immoral if (1) the security provider assumes a personal security to an extent that extremely overcharges its actual and expected future financial situation and (2) if there is a relationship of proximity (Na¨heverha¨ltnis) between debtor and security provider, as e.g. parents to children or between spouses (summary in BGH 29 June 1999, NJW 1999, 2584; BGH 4 Dec. 2001, NJW 2002, 744 – with reaction to criticism). It is presumed that under these circumstances the security provider assumed the personal security only on the basis of its emotional closeness to the debtor and that the creditor took advantage of these circumstances fraudulently (BGH 4 Dec. 2001 supra). In one case these rules were also applied to a dependent personal security assumed by an employee with a modest salary for a bank credit granted to its employer; the employee provided the security in the hope of protecting its workplace, a hope which quickly failed (BGH 14 Oct. 2003, ZIP 2003, 2193). It is an indication of an extreme overcharge if the security provider will probably not even be able to cover at least the agreed interest for the secured credit (BGH 29 June 1999, NJW 1999, 2588). However, the transaction is not immoral if the security provider receives a direct monetary advantage from the secured credit (BGH 29 June 1999, NJW 1999, 2584, 2588; for details reference is made to Fischer, WM 2001, 1056-1059; Erman/Palm § 138 nos. 90 ss.) or if it serves as a counter-performance for an employer’s legitimate claim for damages caused by an employee in a somewhat elevated position (LAG Kçln 12 Dec. 2002, EWiR 2003, 1129). Cf. also supra no. 2.

24.In GREECE, protection for weak providers of personal security is based upon the principle of bona fides laid down in GREEK CC arts. 281, 178-179, 371-372 and 288 which can also be applied for the protection of consumers (GREECE: Georgiades § 3 no. 80).

25.In ITALY, the principle of good faith (CC art. 1375) has been broadly applied to global securities (fideiussioni omnibus) by the courts in order to determine the secured obligation before Law of 17 Feb. 1992 no. 154, art. 10 introduced in CC art. 1938 the requirement that a maximum amount for the security must be fixed (Cass. 15 March 1991 no. 2790, Foro it. 1991 I 2060; Cass. 25 Aug. 1992 no. 9839, Foro it. 1993 I 2172; Cass. 7 Oct. 1993 no. 9936, Giust.civ.Mass. 1993, 1449; Cass. 28 March 1994 no. 3003, Giust.- civ.Mass. 1994, 405; Cass. 14 June 1999 no. 5872, Giust.civ.Mass. 1999, 1367; De Nictolis 222 ss.; 322 ss. with references).

26.In PORTUGAL the principle of bona fides laid down in CC arts. 334, 227, 272, 475 etc. is applied also for the protection of consumers (cf. STJ 25 Nov. 1992, 81181 www.dgsi.pt; STJ 22 Feb. 2000, 995/99 www.dgsi.pt).

27.Also the SPANISH CC art. 7 which contains the principle of bona fides is applied for the protection of consumers.

28.In SWEDEN the general rules in ContrA § 36 juncto Act on Terms of Contracts in Consumer Relationships § 11 are available for the protection of weak providers of security as well.

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III. Non-Applicability of Consumer Protection Provisions in Specific Circumstances

29.In certain situations some member states expressly declare – even if the security provider is a consumer – their relevant consumer protection regimes (cf. supra nos. 2 ss.) not to be applicable.

A.Non-Applicability if Creditor is also a Consumer

30.The most important AUSTRIAN consumer protection provisions apply only if the

creditor is an entrepreneur (§ 3 para 1 ConsProtA for doorstep transactions and §§ 25a-25d ConsProtA for consumer security providers). The special legislation generally prohibiting dependent security to be furnished by an employee in favour of its employer (cf. supra no. 2) applies even if the employer is a consumer (§ 1 para 1 KautSchG). The GERMAN special protective rules for doorstep transactions of consumers and for consumer credit debtors apply only if the creditor is an entrepreneur (CC § 312 para 1 and § 491 para 1, respectively). Under ENGLISH and ITALIAN law, however, the applicability of consumer protection provisions to personal security transactions does not depend upon whether the creditor is not also a consumer (for the relevant criteria see national notes to Art. 1:101 no. 65 for ENGLISH law; no. 66 for ITALIAN law). The same is true in FRANCE for some provisions related to secured consumer credit (ConsC arts. L 313-7 to 313-8). But in other cases consumer provisions do not apply if the creditor is also a consumer (for all credit types: ConsC arts. L 341-1 to 341-6 requiring a «cre´ancier professionnel»; for consumer credit: ConsC arts. L 313-9 and L 31310).

B.Non-Applicability if Security Provider Has Special Relationship to Debtor Company

31.In a few countries it is expressly provided that officers of a company who assume a security covering an obligation owed by the company may not be regarded as consumers. This is so in the NETHERLANDS, provided the officer alone or together with its colleagues holds the majority of the shares and provided further it was acting in the normal exercise of the business of the company (DUTCH CC art. 7:857). While there do not seem to be any cases on this provision, some decisions on CC art. 1:88 para 5 are relevant since the latter has the same wording as the second part of art. 7:857. In one case the Supreme Court extended the scope of CC art. 1:88 para 5 to a situation where the officer held all the shares of intermediate holding companies and was also the director of them (HR 11 July 2003, NJ 2004 no. 173 at p. 1459 s. with an express reference to the corresponding provision of CC art. 7:857). In another case the Court held that there is no “normal” exercise of business if a security is granted in the context of an inter-company financial transaction between several companies “owned” by three brothers; the only effect was to redistribute debts between these companies, but it did not secure fresh capital (HR 14 April 2000, NJ 2000 no. 689 at p. 4755). The FINNISH definition of this exception is even broader since it covers, without reference to activity, not only officers but also direct or indirect holders of at least one third of the shares of the debtor company or of a parent company (LDepGuar § 2 no. 6).

32.The AUSTRIAN Supreme Court has held in two cases that the sole shareholder of a company who acts as manager for “its” company in assuming a personal security for an

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obligation of the company does not have the status of a consumer (OGH 11 Feb. 2002, SZ 2002 no. 18 at p. 133; OGH 25 June 2003, BA 2004, 143, 145). In one case, even a manager who held 25% of the shares was denied that status as well (OGH 20 Feb. 2003, BA 2003, 957). By contrast, “according to settled case law” the manager of a company who does not hold shares in it is in such cases regarded as a consumer (OGH 24 Nov.

2005, JBl. 2006, 384, 387 with references; OGH 26 Sept. 1991, BA 1992, 578).

33.The GERMAN courts distinguish, in fact, between the assumption of co-debtorships and other ordinary personal security. It is now settled case law of the Federal Supreme Court that the co-debtorship even of a sole shareholder and director for the obligations of the company is subject to the rules on consumer protection (BGH 8 Nov. 2005, WM 2006, 81, 82 ss.; 28 June 2000, BGHZ 144, 370, 380 ss.; 5 June 1996, BGHZ 133, 71, 77 s.). On the other hand, the Court excludes shareholders, directors and other persons that exercise considerable influence on the debtor company from its specific protective practice concerning global guarantees (see supra national notes to Art. 1:101 no. 45). Furthermore, the protective practice in favour of close relatives (cf. supra nos. 22 s.) generally does not apply to shareholders either since the creditor has a justified interest in involving them into securing a credit granted to the company; only small shareholders – the limit appears to be 10 % – are excepted (BGH 10 Dec. 2002, ZIP 2003, 288 at 289 with numerous references).

34.It may be added that ITALIAN courts have developed another specific consequence of the existence of a special relationship between a (consumer) security provider and the non-consumer debtor: in certain cases where a spouse provides personal security for a business credit of the other spouse and this financial support is proved to be indispensable to the business activity, the courts assume that a de facto company between the two spouses exists, i.e. the security provider is regarded as a partner (with or even without limitation of personal liability, as the case might be) in the enterprise of the other spouse (Cass. 14 Feb. 2003 no. 2200, Giust.civ. 2003 I 1220); however, additional indications for an implied intention of the parties to create such a de facto company must be present, such as the sharing of the profits (Cass. 23 Dec. 1982 no. 7119, Giur.comm. 1983 II 847; CFI Napoli 25 March 1996, Riv.Notar. 1996, 1240; CFI Catania 15 July 1992, Dir.fall. 1993 II 167; Galgano 66; Bronzini 167). In such cases, insolvency proceedings can be opened also against this de facto company, which extend even to the consumer security provider as a partner in this company; in these proceedings, the consumer security provider can be held solidarily liable with all its assets to all the creditors of the enterprise (not only the creditor of the obligation under the security), typically not even limited to the maximum amount of its security. This is particularly true if the security provider did not act for remuneration and its right of recourse against the principal debtor is excluded (CFI Napoli 12 Dec. 1996, BBTC 1998 II 84 ss.).

(Bisping/Bo¨ger)

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Article 4:102: Applicable Rules

Article 4:102: Applicable Rules

(1)A personal security subject to this Chapter is governed by the rules of Chapters 1 and 2, except as otherwise provided in this Chapter.

(2)The parties may not deviate to the disadvantage of a security provider from the rules of this Part.

Comments

A.Introduction

1. Article 4:102 (1) circumscribes those rules of this Part that apply to personal security provided by consumers, while para (2) fixes and specifies the mandatory character of the applicable rules.

B.Applicable Rules

2.The implied main rule of Article 4:102 (1) is that a consumer’s personal security that does not fall under Article 4:101 (2) is, generally speaking, subject to Chapters 1 and 2 of this Part.

3.The applicability of Chapter 1 means that the general rules on personal security contained in that Chapter also apply – subject to any special rules established in Chapter 4 – to personal security assumed by a consumer.

4.In particular, Chapter 4 also applies to a co-debtorship for security purposes. If one (or several) of the co-debtors is (or are) a consumer (as defined in Article 1:101 (g)), Chapter 4 is applicable to that (or those) security provider(s); this is already spelt out in Article 1:106. In addition to Chapter 4 – and subject to its special provisions – also the regime for the protection of the security provider in Chapter 2 applies to a consumer’s codebtorship for security purposes by virtue of the reference to that Chapter which is contained in para (1). The application of Chapter 2 is justified by the fact that the rules on dependent security are the mildest form of security; and this is reinforced by the fact

that, when applied to a consumer, those rules may not be derogated from to the disadvantage of the consumer, cf. Article 4:102 (2). By contrast, a general co-debtorship without security purpose is only subject to PECL Chapter 10 Section 1, cf. Article 1:106.

5. Also the set of rules on the rights and obligations of several security providers (Articles 1:107-1:109) apply to consumer security providers, subject, of course, to any

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special rules in Chapter 4. It does not seem, however, that Chapter 4 contains any relevant rules.

6.The applicability of Chapter 2 means that the general rules on dependent personal security (as defined in Article 1:101 (a)) also apply to personal security assumed by consumers. Since Chapter 3 on independent personal security is not mentioned in Article 4:102 (2), personal security by consumers can only be granted as a dependent personal security. This conclusion is explicitly confirmed by Article 4:106 (c).

7.While, generally speaking, Chapter 2 applies to a consumer’s personal security, that general principle is subject to many exceptions. In fact, all the substantive rules of Chapter 4, i.e. Articles 4:102 (2)-4:108, derogate from, or supplement, the rules of Chapter 2 on dependent personal security. These supplements and derogations will be set out and explained in the Comments to those rules.

C.Mandatory Character of Chapter 4

8.As is usual for provisions serving the protection of consumers (or other weak parties), Article 4:102 (2) provides that the parties of a personal security may not deviate to the disadvantage of a security provider from the rules of this Part.

9.It is to be noted first, that this prohibition does not only cover Chapter 4, but all the rules on personal security in this Part. Only by extending the protection of the consumer security provider beyond Chapter 4 to all the other Chapters is its full protection assured. Also the negative implication of Article 4:102 (1), namely the non-access of consumers to furnishing independent personal security (cf. supra no. 6) is covered.

10.The consumer provider of personal security is protected against any deviation “to the disadvantage of a security provider” from the rules of this Part. Deviations that are favourable for the consumer security provider are allowed; only deviations to its disadvantage are prohibited. It is impossible to give an abstract definition of a disadvantageous deviation and neither is it possible to give a complete catalogue. Two general criteria must in each case be fulfilled: First, the specific instrument or contract or clause must deviate from the specific rules in Chapters 1 to 4. And secondly, this deviation must be to the disadvantage of the consumer security provider. Out of dozens of possibly disadvantageous deviations, two specific cases may be offered for purposes of illustration:

Illustration 1

According to a very frequently used clause the creditor maintains all its rights against the security provider until the debtor of the secured obligation will have completely performed any outstanding obligation. This clause deviates in case of partial repayment of the credit from Article 2:102 (1) and is therefore void.

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Illustration 2

Another clause used in practice provides that the security provider remains liable, even if the creditor, for whatever reasons, should fail to observe all its rights against the debtor or another security provider. This clause deviates from Article 2:110 and is therefore void.

11.Each disadvantageous deviation as such is relevant. It is not possible to “compensate” one negative deviation by another positive deviation in favour of a consumer, since it would be difficult, if not impossible to attach relative weights to the one and the other factor.

12.The consequence of any disadvantageous deviation from the rules of this Part is not spelt out expressly. However, the clear implication of Article 4:102 (2) is that a prohibited deviation is void. This nullity primarily affects the prohibited clause of the contract. In general, the remaining part of the contract continues in effect; that corresponds to the general principle underlying PECL Article 15:103 (1). However, if the balance of the remaining rights and obligations of the parties would be fundamentally affected in favour of one of the parties and it would be unreasonable to uphold the remaining contract, then the entire contract may become void. An abstract formula for the decision whether or not to uphold the remaining contract cannot be offered. Obviously, everything depends upon the circumstances, such as the importance of the prohibited clause and the extent and weight of the remaining rights and obligations of the parties to the contract.

National Notes

I. Mandatory Character of Consumer Protection Legislation

A.Deviation to the Disadvantage of Consumer Security Providers

1.Where specific rules on personal securities provided by consumers have been enacted, they are mandatory as well: All provisions of the relevant AUSTRIAN legislation on consumer protection, including the rules on the protection of consumer security pro-

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viders (§§ 29a-29d) are mandatory in favour of the consumer; contractual deviations therefore have no effect (§ 2 para 2 ConsProtA). According to FINNISH LDepGuar § 1 para 3 the provisions of this Law on the rights and duties of private security providers may not be deviated from to the disadvantage of those security providers. BELGIAN ConsCredA arts. 34-37 on the protection of security providers for credits granted to consumers are mandatory (Forges no. 193 at p. 330; Van der Wielen and Wallemacq 23). One author makes a distinction between professional and non-professional security providers and considers the rules in ConsCredA arts. 34-37 as non-mandatory if the security provider is a professional (Lettany no. 252bis at p. 221). In FRENCH consumer law no deviations are admitted, even to the advantage of a consumer security provider (cf. for all credit types: ConsC arts. L 341-1 to 341-6, for consumer credit only: ConsC arts. L 313-7 to 313-10). In DUTCH law there may be no deviations to the detriment of the security provider from CC art. 7:852 to art. 7:856 (general provisions on dependent personal securities) and 7:858 to 7:861 (on dependent personal securities by consumers) and from the obligations which pursuant to art. 6:154 the creditor has toward the security provider in view of a possible subrogation (CC art. 7:862).

B.Deviations to the Disadvantage of Consumers in General

2.In other countries such restrictions concerning the dispositive rules that aim to protect the security provider do not exist. However, according to the underlying EU-Directives, in most member states general legislation on consumer protection is mandatory in favour of the consumer so that contracts may not deviate from these rules to the disadvantage of the consumer. This is true e.g. for legislation on consumer credit (DUTCH

CC art. 3:40 juncto art. 7:862; Hartlief 224; Blomkwist 52-53; GERMAN CC § 506; ITALIAN Banking Law art. 127; SWEDISH Law on Terms of Contracts in Consumer Relationships § 11), on doorstep transactions (GERMAN CC § 312f; ITALY: ConsC art. 143, former DLgs 15 January 1992 no. 50 art. 10 para 2) and also for the general laws on consumer protection (AUSTRIAN ConsProtA §§ 2 para 2, 25c; DANISH Law on Certain Consumer Contracts § 28; Andersen, Madsen and Nørgaard 96; PORTUGAL: ConsProtA art. 16 para 1; cf. for all consumer protection rules SPANISH CC art. 6 para 2 and 3).

3.Especially the rules on abusive clauses or, more generally, on general terms and conditions may become relevant for a personal security contract whenever they are considered applicable to those contracts (on this specific point see national notes on Art. 4:101 sub I). According to the underlying EU-Directive, they provide that abusive clauses are void (ENGLAND and SCOTLAND: Unfair Terms in Consumer Contracts Regulations 1999 reg. 8 para 1; for the discussion on the applicability of these rules to personal securities cf. national notes to Art. 4:101 no. 4; FRENCH ConsC art. L 132-1 para 6; GERMAN CC § 307; PORTUGAL: Law on General Contract Terms art. 15; for consumers cf. also section III arts. 20, 21 and 22; for the applicability of this Law to dependent personal security see STJ 12 Jan. 2006, 3756/05 www.dgsi.pt).

4.Also ITALIAN ConsC art. 36 (former CC art. 1469quinquies) establishes that abusive clauses have no effect. However, it must be noted that the clauses listed in ConsC art. 33 (former CC art. 1469bis) are not automatically void, but only subject to a rebuttable presumption of abusiveness. Moreover, ConsC art. 34 para 4 (former CC art. 1469ter para 4) states that clauses that have been agreed by individual negotiation with the

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consumer are valid. Only a few clauses listed in ConsC art. 36 para 2 (former CC art. 1469quinquies para 2) are void notwithstanding individual negotiation (for an application of the control of abusive clauses to the model contract of dependent personal security drafted by the Association of Italian Banks see Petti 361 ss.; however, in the field of personal security that kind of control has gained very little relevance on court practice until now, for decisions on the issue are scarce: Cass. 11 Jan. 2001 no. 314, Foro it. 2001 I 1589; Cass. 13 May 2005 no. 10107, Foro it. Mass. 2005, 1203). The model contract provided by the Italian Bank Association contained some clauses derogating from the ordinary rules of the civil code for dependent personal securities. The most important one is the clause on ‘first demand’ on the basis of which the security provider has to pay immediately on the creditor’s request, but still maintains the right to raise against it any exception it had against the debtor after payment on the security (solve et repete). According to the Bank of Italy – which supervises the application of antitrust law in the banking sector – this clause of the model contract does not violate antitrust law (Law no. 287 of 10 Oct. 1990 art. 2). Other clauses, however, have to be cancelled from the model contract: e.g. the clause extending the liability of the security provider to any other obligation of reimbursement arising from the invalidity of any payment on the secured obligation made to the bank; the clause extending the security provider’s liability to the reimbursement obligation of the debtor arising in case of invalidity of the secured obligation; the clause derogating from CC art. 1957 on time limits for the security (Bank of Italy, decision no. 55 of 2 May 2005, www.agcm.it, Bollettino no. 17 of 16 May 2005 p. 97 ss.). Yet, according to ITALIAN case law, this decision does not prohibit that such clauses might be individually contracted between banks and consumer security providers (CA Torino 27 Oct. 1998, BBTC 2001 II 87; CFI Milano 25 May 2000, BBTC 2001 II 88; CFI Torino 16 Oct. 1997, BBTC 2001 II 87; CFI Alba 12 Jan. 1995, Dir.b.merc.fin. 1996 I 501).

5.The SPANISH Law 7/1998 on General Contract Terms art. 8 para 1 establishes the nullity of those general clauses contravening this law to the prejudice of the weak party

(adherent). Article 8 para 2 declares that those general clauses which are abusive for a consumer – in any case those listed in art. 10bis and in the first additional provision («disposicio´n adicional primera») of Law 26/1984 (ConsProtA) – are null and void. Of special relevance for consumer security contracts is no. 18 of the first additional provision to ConsProtA. It states that clauses imposing upon the consumer security provider a disproportionate liability are abusive. However, since the rule adds that financing or security contracts negotiated by financial institutions according to their governing laws are presumed not to be disproportionate, the provision is doomed to have no practical relevance (Carrasco Perera a.o. 131).

C.Consumer’s Waiver of Rights

6.In ENGLAND, FRANCE and ITALY the special laws on consumers’ rights contain rules on the waiver of the rights provided therein. In ENGLAND, ConsCredA sec. 173 expressly forbids the so-called “contracting-out”, resulting in the nullity of that particular clause. The FRENCH rule on doorstep transactions (ConsC art. L 121-25 para 2) provides for the nullity of any waiver of the consumer’s right to withdraw. According to ITALIAN ConsC art. 143 para 1 the waiver of the rights conferred by the ConsC to the consumers is void.

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7.GERMAN CC § 312f and § 506 prohibit the previous waiver by a consumer of the rights granted by the relevant rules on the revocation of doorstep transactions and on consumer credits, respectively (cf. Palandt/Gru¨neberg § 312f no. 1 and Palandt/Putzo § 506 nos. 2 s.).

8.Although GREEK ConsProtA does not contain an explicit general provision on the mandatory character of the provisions of this Law, it sanctions however with nullity the previous waiver of the right to withdraw from contracts negotiated outside business premises (art. 3 para 4) and from distance contracts (art. 4 para 10). Former GREEK ConsProtA (Law no. 1961/1991) art. 3 para 3 nullified the consumer’s waiver of the rights arising from the Law. The lack of such an explicit provision in the new ConsProtA gave rise to doubts regarding the protection of the consumer when it ignored the existence of general terms and conditions waiving all rights arising from the ConsProtA: in this case, the consumer will have already renounced also the right arising from ConsProtA art. 2 para 1, according to which the terms and conditions which it ignored do not bind it (Alexandridou 290). These doubts are dispelled by accepting, as it is commonly held in literature, that rules aiming to preserve the interests of the weaker contracting party like those contained in the ConsProtA are mandatory (Georgiades, General Principles § 5 no. 19).

9.Also in PORTUGAL similar rules prohibiting the waiver of rights conferred by protec-

tive consumer legislation exist (cf. ConsProtA art. 16 para 1 and ConsCredA art. 18 para 1).

10.SPANISH CC art. 6 para 2 allows a voluntary exclusion of applicable law only when this does not contravene public interest or public order nor prejudices third parties. More specifically, SPANISH ConsProtA art. 2 para 3 sent. 1 states that any previous waiver of

the consumer’s rights contained in the Law shall be void, whereas sent. 2 of the same provision establishes the nullity of acts in “fraud of the law” and refers to CC art. 6 para 4, according to which acts realized under the protection of the text of a norm that seek a result prohibited by the legal order or that is contrary thereto are considered in fraud of the law and shall not prevent the appropriate application of the law sought to be evaded. A similar rule is to be found in the SPANISH Law 26/1991 on Doorstep Transactions. Finally, ConsProtA first additional provision no. 14 declares void any clause not individually contracted with the consumer whereby the latter waives or limits its rights. It has been noticed that this means in effect that the legal regime of dependent personal security – normally non-mandatory – becomes mandatory if the security provider is a consumer. However, the rule is interpreted narrowly, as to state the nullity of consumers’ waivers only to those protective rights which are granted them by the law (Carrasco Perera a.o. 131).

II. Sanctions in Case of Deviation to the Disadvantage of the

Consumer Security Provider or Consumer in General

11.In most member states deviations to the disadvantage of consumer security providers or consumers in general do not result in the nullity of the whole contract. However, consequences of the breach of the prohibition vary according to national practices.

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A.Partial Nullity

12.In DANISH, DUTCH, FRENCH, GERMAN, ITALIAN and SPANISH law partial nullity does not, as a rule, entail nullity of the whole contract of personal security (DENMARK:

Andersen, Madsen and Nørgaard 96; DUTCH CC art. 7:862 (juncto art. 3:41); Hartlief

224; Blomkwist 52 s.; FRENCH rules on unfair contract terms integrated into FRENCH ConsC art. L 132-1 para 6, FRENCH rules on all credit types (ConsC art. L 341-3 juncto art. L 341-5) and on Consumer Credit (impliedly ConsC art. L 311-18), which stipulate a partial nullity for clauses imposing solidary liability; ITALIAN ConsC art. 36 para 1, former CC art. 1469quinquies para 1; Calvo 230 ss.; CA Milano 31 Dec. 1999, Giur. milanese 2000, 222 for the partial nullity of the abusive clauses only, in a dependent personal security; SPAIN: Dı´ez-Picazo and Gullo´n, Instituciones 462). The GERMAN Federal Supreme Court also admits partial nullity of a consumer’s co-debtorship for security purposes, provided the void part of the transaction can clearly be separated from the valid remaining part (BGH 14 Nov. 2000, BGHZ 146, 37, 47 ss.). Similar in cases of violation of GERMAN CC §§ 305c para 1, 307 and GREEK ConsProtA art. 2 para 1, 6 and 7 (as amended in 1999), i.e. when clauses in general terms and conditions are surprising or abusive, these clauses do not become part of the contract or are invalid, respectively (GREECE: Georgiades § 3 no. 97). According to GERMAN CC § 139 and GREEK CC art. 181 partial nullity of a legal transaction provokes in general its complete nullity, unless it may be assumed that the legal transaction would have been entered into even without the void part. But in GERMANY the invalidity of one or more clauses in general terms and conditions does not in general affect the validity of the whole contract (CC § 306). By contrast, according to GREEK ConsProtA art. 2 para 8, only the consumer and not the provider of goods or services may, in this case, invoke the nullity of the whole contract (according to Karakostas 68, GREEK CC art. 181 on the consequences of partial nullity is not applied in this case). According to PORTUGUESE ConsProtA art. 16 para 3 and DL on General Contract Terms art. 13 the consumer may choose to keep the contract, when some of the clauses are void, the general rules or the rules on the integration of contracts being then applicable. In ENGLAND and SCOTLAND, standard clauses which are “unfair” under the Unfair Terms in Consumer Contracts Regulations 1999 “shall not be binding on the consumer” (reg. 8 para 1); the remaining contract shall continue to bind the parties, if possible without the unfair clause (reg. 8 para 2).

B.Reduction and Interpretation by the Court

13.In AUSTRIA the security provider’s obligations may be reduced if the latter’s assets were obviously insufficient for performing the personal security (ConsProtA § 25d). In FRANCE the same solution had been suggested by the Grimaldi Commission for the application of the so-called principle of proportionality (CC proposed new 2305): the engagement of the provider of dependent security acting for private purpose may be reduced if its engagement was manifestly disproportionate to its financial capacity and its income, unless at the time of the requested performance it is able to perform the obligation; however, this proposal, as most others for a reform of the rules on personal security, was not adopted by the legislator in 2006. According to SPANISH Law 26/1984 (ConsProtA) art. 10bis para 2, abusive clauses, conditions and stipulations shall be con-

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