Principles of European Law. Personal Security. Bearbeitet von Ulrich Drobnig

Transcription

1 Principles of European Law Personal Security Bearbeitet von Ulrich Drobnig 1. Auflage Buch. XXXII, 567 S. Hardcover ISBN Format (B x L): 16,5 x 24,5 cm Gewicht: 1028 g Recht > Zivilrecht > Internationales Privatrecht > Europäisches Privatrecht Zu Inhaltsverzeichnis schnell und portofrei erhältlich bei Die Online-Fachbuchhandlung beck-shop.de ist spezialisiert auf Fachbücher, insbesondere Recht, Steuern und Wirtschaft. Im Sortiment finden Sie alle Medien (Bücher, Zeitschriften, CDs, ebooks, etc.) aller Verlage. Ergänzt wird das Programm durch Services wie Neuerscheinungsdienst oder Zusammenstellungen von Büchern zu Sonderpreisen. Der Shop führt mehr als 8 Millionen Produkte.

2 Principles of European Law Study Group on a European Civil Code Personal Security (PEL Pers. Sec.) prepared by Professor Ulrich Drobnig, Hamburg Chairman of the Working Team on Personal Security with advice from the Advisory Council on Personal Security approved by the Co-ordinating Group Particular advice on the drafting of the Articles from Professor Eric Clive, Edinburgh Sellier. European Law Publishers Stæmpfli Publishers Ltd. Berne

3 Volume 4 To be cited as: PEL/Drobnig, Pers. Sec. ISSN ISBN (Staempfli) ISBN (Bruylant) ISBN (Sellier. European Law Publishers) Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar by Sellier. European Law Publishers, Munich together with Study Group on a European Civil Code. Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist ohne Zustimmung des Verlages unzulässig und strafbar. Das gilt insbesondere für Vervielfältigungen, Übersetzungen, Mikroverfilmungen und die Einspeicherung und Verarbeitung in elektronischen Systemen. Gestaltung: Sandra Sellier, München. Herstellung: Karina Hack, München. Satz: fidus Publikations-Service GmbH, Augsburg. Druck und Bindung: Friedrich Pustet KG, Regensburg. Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany

4 Introduction A. General Remarks 1. By granting personal security, a security provider obliges itself to render a performance, usually by payment of money, to the creditor for the purpose of security. Typically, the purpose of personal security is to secure an underlying obligation that may be directly and expressly connected to the personal security or merely indirectly. Personal security differs from proprietary security which is usually granted by the debtor itself: the latter merely creates a preferential right for the creditor in one or more specific item(s) of its property. By contrast, by assuming a personal security, a third person, the security provider, becomes liable to the creditor with all its assets. It goes without saying that this creates a special risk for the security provider. This risk is commensurate to the utility which such security may constitute for the secured creditor, depending, of course, upon the security provider s potential to pay. 2. The rapid evolution and expansion of modern credit economies has increased the economic demand for as much security as possible; the better and the more comprehensive the security, the lower the creditor s risk and therefore the cost of the credit, as reflected by the interest rate. In addition, by making available a personal security, many debtors who otherwise would not be eligible may have the chance of receiving credit; this applies in particular to many consumers. Consequently, personal security has in recent years as much expanded as proprietary security. In countries, where the latter is restricted due to legal or practical reasons, personal security often may serve as a substitute and may therefore be even more important than the alternative. 3. The enormous expansion of credit in all modern economies would not have been possible without an equally strong expansion of the means of securing these credits, by both personal and proprietary security. The expansion of personal security, in particular, can be observed especially in public credit programmes for promoting credits to small and medium sized enterprises, as well as for exports and investments in foreign countries. In some countries, special institutions for the promotion of such programmes have been created which provide personal security for the commercial credits which small and medium domestic enterprises as well as exporters and investors may receive; the conditions, especially the interest rates of these credits are thanks to the personal security furnished clearly lower than those of normal commercial credits. The same phenomenon can be observed in a purely commercial setting if and insofar as satisfactory commercial or private persons or legal entities are willing to assume personal security. The granting of personal security has in recent years often been used also as a substitute for a customer s retaining payments as a security for potential warranty claims against building or other contractors. By offering a third party s personal security, the contractor quickly obtains urgently needed cash. Such personal securities require to be as readily and fully available as the cash which would otherwise have been retained by the customer. This is 79

5 Introduction the economic reason for the popularity of the personal securities that become due upon first demand. 4. The granting of personal security is a specific type of contract which is recognised in all member states of the European Community and beyond. Being a contract, it is governed by the general maxim of freedom of contract. The parties therefore are free to develop new types of contractual personal security. Practice shows that such new types beyond the classical model of the suretyship have indeed been developed, especially the independent guarantee and the co-debtorship for security purposes, the most recent and still developing invention being the binding comfort letter. 5. One lesson to be learnt from the recent expansion of personal security is that any rule-making in this field, be it by legislation or by informal means such as a restatement, must be flexible, so as to leave room for new developments. In other words, any rulemaking must not, in principle, be mandatory. On the other hand, the granting of personal security creates a very considerable risk for the security provider. It assumes an obligation vis-à-vis the creditor and it is liable with all its property. Only security providers who make the providing of personal security their business, such as banks or insurance companies, will assume this risk against a fee or commission, usually to be paid by the debtor. A very great percentage of personal security, however, is granted without a reward: by members or directors of a company with limited liability for securing company debts; by family members for bank credits granted to a spouse, a parent or a child to finance private acquisitions of any kind or the setting up, the expansion or the rescue of a business. Modern experiences in many countries have confirmed the old insight and wisdom that most people without business experience do not recognise the highly risky character of assuming a personal security. Legislators and courts have therefore increasingly intervened by establishing protective rules of a mandatory character for the protection of security givers. Any modern rule-making in the area of personal security would be incomplete and deficient if it would fail to recognise and counter this risk. However, in view of the existing broad range of national varieties to be found in Europe, it is not easy to frame a European common standard in this field (cf. Chapter 4). 6. The purpose of the Rules presented here is to reflect the state of development that has been achieved in our days in the 15 old member states of the European Union. In most of these member states, legislation or firm case law exists for the dependent personal security based upon, or at least in accordance with, the old Roman institution of the fideiussio. However, everywhere major new developments have taken place, although to different degrees and in divergent directions: one is the creation of a commercial branch in the form of the independent personal security and related instruments. Another, by contrast, is the elaboration of special protective rules for consumer security providers. The present Rules are intended to reflect these developments on a European level. By formulating rules that reflect these divergent modern trends it is hoped to promote practice in all member states and to thus create a level playing field for all interested parties in all member states. 7. The granting of personal security may be subject to conditions established by other branches of the law. There are prohibitions or restrictions of public law or general private 80

6 A. General Remarks law. In some legal systems the validity of a personal security is sometimes made dependent upon its approval by a third party, e.g., by the security provider s spouse or by the board of management of a company or, in the case of public institutions, by a supervisory authority. The absence of a required approval may nullify the personal security. The rules of this Part do not cover these situations; rather, the applicable national legal systems have to be consulted on any such requirements which typically are regulated in other branches of the law and the consequences of their non-observation. 8. The character and function of a personal security sometimes tends to be mixed up with other legal institutions and therefore needs to be clearly set out. In particular, the term guarantee (and its linguistic equivalents) in the GERMANIC countries is there used also in another context, scil. as a debtor s express warranty of its due performance. Such express warranties, as a collateral term affirming or strengthening a debtor s contractual main obligations (sometimes called a bilateral guarantee) are outside the scope of this Part. This Part deals only with contracts which serve as security for the performance of obligations owed by a third person, the debtor to the creditor. The security provider usually assumes this personal security upon the request and for the account of the debtor. Economically and to some degree also legally, a trilateral relationship is involved. 9. Close analysis of the various forms of personal security that have developed outside the original historical institution of what in these Rules is called a personal security, i.e. suretyship, has revealed that most variations of the traditional suretyship can be reduced to two basic patterns: personal security is either dependent upon the secured obligation the classical example being the suretyship; or it is independent from any underlying obligation the typical example being the (new) independent guarantee. While most Continental legal systems have developed specific terms for the two types of personal security (such as Bürgschaft and Garantie, or cautionnement and garantie indépendante, etc.), the terms used in the English-speaking countries ((suretyship) guarantee and indemnity) are not as precisely defined. Also another linguistic diversity should be noted: While English law accommodates all types of personal security under the singular of this term (the term securities has a meaning of its own), all Continental countries refer to the various types of personal securities in the plural. Consequently, these Rules are entitled Rules on Personal Security, while the translations use the plural form. 10. The present Part is divided into four Chapters, the main division being between Chapters 2 and 3 which deal, respectively, with the two basic types of personal security just mentioned (cf. supra no. 9), i.e. the dependent and the independent personal security. These two Chapters are preceded by a short Chapter 1 with Common Rules. In this Chapter are to be found definitions, rules on the scope of this Part, rules common to dependent and independent personal securities and a rule on the special institution of the co-debtorship for security purposes (cf. Article 1:106). Finally, Chapter 4 comprises special protective rules for consumers as grantors of personal security. Chapter 1: Common Rules Chapter 2: Dependent Personal Security (Suretyship Guarantees) Chapter 3: Independent Personal Security (Indemnities/Independent Guarantees) Chapter 4: Special Rules for Personal Security of Consumers 81

7 Introduction 11. In view of the manifold types of personal security that already exist and may further be added in the future, it seems to be preferable to use terms that are as general as possible, such as personal security, security provider etc. throughout this Part. This method has indeed been used in the English version of these rules, allowing only for abstract terms such as dependent personal security or independent personal security in Chapters 2 and 3, respectively. In the translations of these rules into other languages, however, general terms are used only in Chapters 1 and 4, while in Chapters 2 and 3 the traditional national legal terminology has been applied in order to make the texts more comprehensible for the reader who will inevitably be more acquainted with these terms. Where, as in English and sometimes in some other national legal terminologies, terms that are comparably well-defined and generally accepted are not available, in the English version as well as in some of the translations traditional terms such as suretyship guarantee or indemnity are indicated only as a traditional variant. 12. The English text of the rules on personal security is the authentic text including the Comments which explain and specify the rules and the National Notes which, presented in a comparative method, indicate the situation in the 15 old member states of the European Union. The translations of the rules into some other languages are not authentic although much effort and discussion has been invested in establishing them. B. Relation to General Contract Law (PECL) 13. Personal security is a specific type of contract, and only the specific features of this type of contract are laid down in the present Principles of European Law on Personal Security. However, for a full understanding of the present Principles, the Principles of European Contract Law (PECL) must be taken into account as an important supplemental set of rules. It goes without saying that it is neither necessary nor feasible to present in the present context a broad survey. A short conspectus of important principles and rules must suffice in order to direct attention to central issues and solutions of potentially relevant points. 14. The Principles of European Contract Law (PECL) were published in two volumes in 2000 and and offer in 17 chapters rules on general European contract law, specifically on the following subjects: Chapter(s) Legal Sources, General Duties of the Parties and Terminology 1 Formation of Contracts 2 Plurality of Parties 10 Authority of Agents 3 Validity and Illegality 4 and 15 1 Lando and Beale (eds.), Principles of European Contract Law. Parts I and II (The Hague, London and Boston 2000); Lando, Clive, Prüm and Zimmermann (eds.), Principles of European Contract Law. Part III (The Hague, London, New York 2003). 82

8 B. Relation to General Contract Law (PECL) Chapter(s) Interpretation 5 Contents and Effects; Conditions 6 and 16 Performance 7 Non-Performance in General 8 Particular Remedies for Non-Performance; Capitalisation of Interest 9 and 17 Assignment of Claims 11 Substitution of New Debtor and Transfer of Contract 12 Set-Off 13 Prescription 14 If the parties wish to make these rules applicable, they will have to opt for them (PECL Article 1:101). Both the rules of PECL and most of the present rules are subject to party agreement, unless the contrary is expressly said (PECL Article 1:102 and in this Part Article 1:103, except the rules of Chapter 4). 15. For present purposes, it is necessary to distinguish between two different contracts: one is the security agreement under which the debtor of a monetary (or other) obligation obliges itself to provide a personal security to the creditor in order to secure its obligation (infra nos ). The other is the personal security itself which contains the security undertaking of the security provider towards the creditor (infra nos ). 16. The security agreement. This agreement usually is a clause which is contained in the main contract (e.g., a credit contract between creditor and debtor; or an instalment sale between seller and buyer; etc.) and which is the source of the obligation to provide the security. It may also occur that the security agreement is a separate contract. However, the distinction between these two forms does not imply any difference in substance. 17. The security agreement will not be regulated as a specific type of contract; it is a preliminary aspect of both personal and proprietary security rights. 18. The security agreement is fully subject to the rules of general contract law, as laid down in PECL: The General Provisions of PECL, contained in Chapter 1 are applicable, including the principle of freedom of contract (PECL Article 1:102), the incidence of mandatory law (Article 1:103), the relevance of usages and practices (Article 1:105) and the rules on interpretation (Article 1:106 as well as Articles 5:101 to 5:106) and supplementation. The mandatory duty of good faith and fair dealing applies as well as the duty to co-operate (Articles 1:201 and 1:202). Attention should be drawn to the meaning of terms (Articles 1:301 s.) as well as certain technical rules on notice, computation of time and imputed knowledge and intention (Articles 1:303 ss.). More comprehensive is the contents of each of the following Chapters 2-17, cf. supra no