Description
(Text)
A creditor who made a loan to a debtor but does not have full confidence into the ability or willingness of the debtor to repay the loan fully and punctually, has two main options for securing his loan capital: He either can demand that the debtor gives him real security by encumbering one or several of his assets. Or he suggests to the debtor to win over a third party to act as a guarantor and to assume joint liability for repayment of the loan.
Such a form of personal security by means of a bond has been known for centuries. During the last decades, however, a number of other models for providing personal security for loans have been developed, in particular the guarantee, by now widely used in commerce.
Within the framework of plans of the Commission of the European Union to work out a uniform "framework of reference" for contract law, a multinational work group of the Study Group on a European Civil Code prepared proposals for uniform rules on personal security models. The proposals are based on legal developments formulated in the member states in the last decades and present draft uniform rules for the two basic types, viz. the dependent and the independent personal security for loans. Each proposal not only is accompanied by explanations but the legal situation in each of the 15 old member states is sketched also.
The work therefore is not only a presentation of a future model for European rules to come but provides also a fairly detailed indication of the present legal situation in the member states.
(Table of content)
Foreword
PrefaceText of Articles (English, Danish, Dutch, French, German, Italian, Spanish)
Principles of European Law on Personal Security
Text with Comments and NotesIntroduction
Chapter 1: Common Rules
Article 1:101: Definitions
Article 1:102: Scope
Article 1:103: Freedom of Contract
Article 1:104: Creditor s Acceptance
Article 1:105: Interpretation
Article 1:106: Co-Debtorship for Security Purposes
Article 1:107: Several Security Providers: Solidary Liability Towards Creditor
Article 1:108: Several Security Providers: Internal Recourse
Article 1:109: Several Security Providers: Recourse Against Debtor
Article 1:110: Subsidiary Application of Rules on Solidary Debtors
Chapter 2: Dependent Personal Securities (Suretyship Guarantees)
Article 2:101: Presumption for Dependent Personal Security
Article 2:102: Terms and Extent of the Security Provider s Obligations
Article 2:103: Debtor s Defences Available to the Security Provider
Article 2:104: Coverage of Security
Article 2:105: Solidary Liability of Security Provider
Article 2:106: Subsidiary Liability of Security Provider
Article 2:107: Creditor s Obligations of Notification
Article 2:108: Time Limit for Resort to Security
Article 2:109: Limiting Security Without Time Limit
Article 2:110: Creditor s Liability
Article 2:111: Debtor s Relief for the Security Provider
Article 2:112: Security Provider's Obligations Before Performance
Article 2:113: Security Provider s Rights After Performance
Chapter 3: Independent Personal Securities (Indemnities/Independent Guarantees)
Article 3:101: Scope
Article 3:102: Security Provider s Obligations Before Performance
Article 3:103: Independent Personal Security on First Demand
Article 3:104: Manifestly Abusive or Fraudulent Demand
Article 3:105: Security Provider's Right to Reclaim
Article 3:106: Security With or Without Time Limits
Article 3:107: Transfer of Security
Article 3:108: Security Provider's Rights After Performance
Chapter 4: Special Rules for Personal Security of Consumers
Article 4:101: Scope of Application
Article 4:102: Applicable Rules
Article 4:103: Creditor s Precontractual Obligation of Information
Article 4:104: Door-to-Door Security Transactions
Article 4:105: Form
Article 4:106: Nature of Security Provider s Liability
Article 4:107: Creditor s Obligation of Annual Information
Article 4:108: Limiting Security With Time Limit
Annexes
