учебный год 2023 / Zweigert, The suretyship in the law of the Member States of the European Communities
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COMMISSION OF THE EUROPEAN COMMUNITIES
The suretyship in the law of
the Member States of
the European Communities
COMPETITION: APPROXIMATION OF LEGISLATION SERIES1971 -14
I
The suretyship in the law of
the Member States of
the European Communities
Study prepared by the
"Max-Pianck-lnstitut fOr auslandisches und internationales Privatrecht", Hamburg
•
STUDIES
Competition - Approximation of legislation Series No. 14
Brussels 1971
•
FOREWORD
This study was prepared by a working party of the Max-Planck Institute, in which the following persons worked fullor part-time. The countries for which each of them was responsible are appended in brackets after the names.
Dr Bernstorff, Referendar Wuppermann, Professor Luther (Italy). Assessor Einmahl, Referendar Behrens (France, Belgium, Luxembourg). Dr Rabels, Dr Bruns (Germany).
Referendar Thomas (Netherlands).
Dr Drobnig headed the working party and edited the final version of the study.
The study would not have been possible but for the collaboration of a number of persons and institutions outside Germany. The Institute must express its gratitude to the central banks of the Member States and to a number of credit institutions, insurance companies and individual experts in all six Member States of the European Communities for their answers to a questionnaire prepared by the Institute for information on particular points and for statistical data.
Professor K. Zweigert
Director
3
GENERAL CONTENTS
Part |
I: |
STUDY |
|
13 |
|
|
A- |
Definition of the subject-matter |
15 |
|
|
B - |
Applicability |
22 |
|
|
C - |
Comparative analysis |
25 |
|
|
D - |
Analysis of differences in law |
56 |
Part |
II: |
PROPOSALS AND COMMENTARY |
69 |
|
|
|
Annexes |
81 |
|
5
TABLE OF CONTENTS
PART I
STUDY
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Paragraph |
Page |
|
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No. |
|
|
A - Definition of the subject-matter |
|
15 |
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The need for |
definition |
1 |
|
|
The concept of personal security |
2 |
|
|
|
The forms of personal security |
3 |
|
|
1 - |
The joint debt |
|
|
15 |
|
Concept and forms |
4 |
|
|
|
The prerequisite for a meaningful comparison |
5 |
|
|
|
Material coincidence |
6 |
|
|
|
Differences in |
law |
7 |
|
|
The problems |
of interpretation |
8 |
|
|
Conclusion |
|
9 |
|
2 - |
Guarantee |
|
10 |
17 |
|
Concept |
|
|
|
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Relation to suretyship |
11 |
|
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The guarantee as an independent and clearly defined security |
12 |
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The guarantee as a form of suretyship |
13 |
|
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|
The guarantee in the Civil Code countries |
14 |
|
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Conclusion |
|
15 |
|
3 - |
The guarantee of bill of exchange or promissory note |
16 |
19 |
|
|
ditto |
|
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4 - |
Bailment |
|
17 |
20 |
|
ditto |
|
|
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5 - |
The del credere |
18 |
20 |
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|
ditto |
|
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6 - |
The credit order |
19 |
20 |
|
|
ditto |
|
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7 - |
Credit insurance |
20 |
20 |
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|
ditto |
|
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Summary and use of terms |
21 |
|
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|
B - Applicability |
|
22 |
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Purpose of and limitations on a study of the true state of the law |
22 |
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The use of personal securities |
23 |
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EEC securities |
|
24 |
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Statistics |
|
25 |
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C - Comparative analysis |
|
25 |
|
Structure and method |
26 |
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Arrangement |
|
27 |
|
7
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Paragraph |
Page |
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No. |
|
I. |
Legal character and typical scope of security |
|
25 |
|||||
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Legal character |
28 |
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||||
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Typical scope |
of security |
29 |
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II. |
Conditions |
for |
validity |
|
26 |
|||
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Arrangement |
|
30 |
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|||
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1 - |
The capacity to furnish a personal security |
|
27 |
||||
|
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General |
capacity |
31 |
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Admission to |
practice |
32 |
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Acceptance as |
surety |
33 |
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Restrictions on the capacity to furnish security |
34 |
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||||
|
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Geographical |
restrictions |
35 |
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Restrictions |
on particular persons |
36 |
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2 - |
The rules governing form and proof |
|
28 |
||||
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Evidence by writing as condition for validity |
37 |
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||||
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Written form for evidentiary purposes |
38 |
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Registration |
for evidentiary purposes |
39 |
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Express declaration of promise to stand surety |
40 |
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|
3 - |
Conditions attaching to the secured claim |
|
30 |
||||
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Principle |
|
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|
41 |
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Security |
for |
existing claims |
42 |
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||
|
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Security |
for |
future claims |
43 |
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||
|
|
Security |
for |
conditional claims |
44 |
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||
|
4 - |
Exchange regulations in the case of EEC securities |
45 |
31 |
||||
|
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Definition |
|
|
|
|||
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Exemption from restrictions |
46 |
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||||
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Restrictions |
|
|
47 |
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||
|
5 - |
Costs |
and fees |
48 |
3.2 |
|||
|
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Definition |
|
|
|
|||
|
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Exemption |
|
|
49 |
|
||
|
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Liability |
to |
payment |
50 |
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||
III. |
Extent and extinction of guarantor's liability |
51 |
3.3 |
|||||
|
|
Definition and arrangement |
|
|||||
|
1 - |
Secondary character of the personal security |
52 |
33 |
||||
|
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Definition |
|
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|
|||
|
|
The principle of secondary character |
53 |
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||||
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Exceptions |
|
|
54 |
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Enhanced secondary character |
55 |
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||||
|
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Commission agent's del credere and guarantee |
56 |
|
||||
|
2 - |
Accessory character of the personal security |
|
3~5 |
||||
|
|
(a) |
Purpose |
|
57 |
35 |
||
|
|
|
ditto |
|
|
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||
|
|
(b) |
Scope of application |
58 |
3')- |
|||
|
|
ditto |
|
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|||
|
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(c) |
Validity |
|
|
3'- |
||
|
|
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|
) |
||||
|
|
|
ditto |
|
|
59 |
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8
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Paragraph |
Page |
|
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No. |
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(d) |
Effects survey |
60 |
36 |
||
|
|
|
ditto |
|
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|
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( aa) |
Secured claim void ab initio |
|
36 |
|
|
|
|
|
Principle |
61 |
|
|
|
|
|
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Incapacity of debtor to contract |
62 |
|
|
|
|
|
|
Other grounds of invalidity purely personal to a debtor |
63 |
|
|
|
|
|
|
Reduction or remission of a secured claim |
64 |
|
|
|
|
|
(bb) |
Voidability of secured claim |
|
37 |
|
|
|
|
|
Formulation of the problem |
65 |
|
|
|
|
|
|
Cancellation by the guarantor |
66 |
|
|
|
|
|
|
Guarantor's right to refuse performance |
67 |
|
|
|
|
|
|
A special problem: compensation |
68 |
|
|
|
|
|
(cc) |
Impediments to the exercise of rights |
|
39 |
|
|
|
|
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Principle |
69 |
|
|
|
|
|
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Exceptions |
70 |
|
|
|
|
|
(dd) |
Other changes in the content |
|
40 |
|
|
|
|
|
Legal |
changes |
71 |
|
|
|
|
|
Legal |
extensions |
72 |
|
|
|
|
|
Extensions by judicial transaction |
73 |
|
|
|
|
(e) |
Non-accessory personal rights |
|
40 |
||
|
|
|
General significance |
74 |
|
||
|
|
|
Particular cases |
75 |
|
||
3 |
- |
Special reasons for limiting liability |
|
41 |
|||
|
|
(a) |
Breach of his obligations by the creditor |
|
41 |
||
|
|
|
Principle |
|
76 |
|
|
|
|
|
( 1 ) |
Impairment of the security |
|
41 |
|
|
|
|
Principle |
77 |
|
||
|
|
|
Protected rights |
78 |
|
||
|
|
|
Conduct of creditor |
79 |
|
||
|
|
|
Extent of relief from liability |
80 |
|
||
|
|
|
Faculty |
to stipulate exceptions |
81 |
|
|
|
|
|
Guarantee |
82 |
|
||
|
|
|
Projects |
for law reform |
83 |
|
|
|
|
|
( 2) |
Failure to give notice of extension |
84 |
43 |
|
|
|
|
ditto |
|
|
||
|
|
(b) |
Plurality of personal securities |
85 |
43 |
||
|
|
|
Principle |
|
|
||
|
|
|
Exception: the right to demand division |
86 |
|
||
4 |
- |
Extinction of guarantor's liability |
87 |
44 |
|||
|
|
Survey |
|
|
|
||
|
|
(a) |
Expiry of time-limit |
88 |
44 |
||
|
|
|
Determinate security |
|
|||
|
|
|
Indeterminate security |
89 |
|
||
|
|
|
Bar by prescription |
90 |
|
||
|
|
(b) |
Maturity of secured claim |
91 |
46 |
||
|
|
|
ditto |
|
|
|
|
|
|
(c) |
Extension of secured claim |
92 |
46 |
||
|
|
|
ditto |
|
|
|
|
|
|
(d) |
Deterioration of debtor's financial position |
93 |
47 |
||
|
|
|
ditto |
|
|
|
|
|
|
(e) |
Threat of action against the surety |
94 |
47 |
||
|
|
|
ditto |
|
|
|
|
9