The one-sided binding contract controls the relationship of the guarantors against the creditor a requirement that between the creditor and the debtor (the so-called principal debtor is). The obligee secures himself by the guarantee in the event of the insolvency or unwillingness of his debtor. Such contracts are mainly found in the credit system between the borrower and the credit institution granting the credit . With the guarantee, as with all intercessions , there is no identity between the borrower and the security provider .
The legal institution of the guarantee already existed in the Babylonian law of the Sumerian Mesopotamia in the 3rd millennium BC. The surety reached out to the obligee with his hand to confirm his surety. In the event of the debtor's bankruptcy , the surety had to make payment on his behalf. The Sumerian doctrine of the Suruppak called for this: "You (yourself) should not give a guarantee". The handshake was also considered the beginning of guarantor liability in Hebrew law . The Old Testament mentioned the guarantee several times. In Genesis , Judah vouched for the return of Benjamin before his father Israel : “I vouch for him; you may reclaim it from my hand ”( Gen 43.9 EU ). The Book of Proverbs contains several warnings, for example from Solomon : "My son, if you have become a guarantor for your neighbor, for someone else you have smacked your hand, you are entangled by the words of your mouth, caught by the words of your mouth" ( Prov 6,1-19 EU ). He also warns against the assumption of a guarantee: “Anyone who guarantees a stranger is bad about it; he who refuses the handshake is safe ”( Prov 11.15 EU ). Jesus Sirach compares: “A good man vouches for his neighbor, but a shameless one abandons him” ( Sir 29.14 EU ) and also points out the consequences for the guarantor: “A sinner ruins the goods of a guarantor and one of them ungrateful disposition leaves its savior in the lurch. A guarantee has ruined many upright people and tossed them about like a wave in the sea; They made wealthy men homeless and they wandered around with foreign peoples ”( Sir 29: 16-18 EU ).
In Greece , the guarantee ( Greek εγγύηση , engýisi ) served next to the lien ( Greek ενέχυρου , enéchyru ) as perhaps the oldest business of voluntary assumption of liability for security. The stem contained in the Greek word ( Greek εγγύ ) means "in the hand". To this end, the obligee concluded a guarantee contract with the surety, whereby the surety had to ensure that the debtor paid when the due date . Therefore, the surety needed a personal "power of authority" over the debtor. It was a widespread custom that buying assistants vouch for the buyer. The objection of the preliminary complaint was not necessary.
Ancient Roman law distinguished three forms of guarantee, namely the oath promise (also sponsorship guarantee ; Latin sponsio ), the promise of loyalty ( Latin fidepromissio ) and the accessory guarantee ( Latin fideiussio ). According to Gaius , the sponsorship guarantee could only be taken over by Roman citizens and contained a promissory oath (promise oath), while that from the 6th century BC. Later promises of loyalty from peregrines , i.e. non-Roman citizens without Roman citizenship, were allowed to be entered into. The Sponsionsbürgschaft was sacred origin, for the swearing guarantor fell at non-fulfillment of his promise as Specific ( Latin sacer ) the oath deity. Sponsorship guarantee and promise of loyalty presuppose an existing main debt from stipulation ( Latin verbum obligatio ). They were accessory to the promise made from it and were considered a non- heritable , highly personal right . An early imperial senate resolution, the Senatus Consultum Velleianum , prohibited the judicial negotiation of loan ( Latin mutuum ) and guarantee obligations that women had entered into for men (mostly husbands). Women should be protected from financial threats.
The first two types of guarantee mentioned did not flow into Justinian legislation . The model of linking the guarantee to the debt rather than to a promise of performance was favored. In addition, the "fideiussio" was inheritable. It read on the trustworthy authorization of the surety for the main debt . The surety was considered an accessory correal debtor. As evidenced by the Justinian institutions , the guarantor's obligation could not go beyond the main debt, the co- guarantee was possible. Even the objection of the preliminary complaint was granted to the surety in 535. If the surety was used, this reimbursement of expenses could be demanded from the debtor. In addition to these guarantees, which are geared towards monetary payments, the old Roman law also knew the presentation guarantee ( Latin: vadimonium , praedes dare ), in which the surety assumed liability, for example , to bring the principal debtor to court at a certain time or to avoid his detention.
The word guarantee appeared in Germany for the first time in 325 as “Purgisceffi” on the basis of the “fideiussionibus”. In the 10th century, the word "Bürgschaft" developed from the Old High German "burgiscaf" or "burgiskaf", probably from the Roman "fideiussio", but it is not borrowed from this word, but has its own origins. According to Werner Ogris , there was hardly a business in the Middle Ages that could not be guaranteed by providing a guarantor. The Sachsenspiegel from 1221 mentioned the guarantor ("Borge"), the Schwabenspiegel published around 1275 assumed that the guarantee could be inherited. In addition, there was the German loan word deposit ( Latin cautio , "security, caution"), from which (the words that are no longer used today) cavieren (security or guarantee) and Kavent (warrantor, guarantor) were derived.
In 1754 Christian Wolff defined the "fideiussio" as a contract, "whereby one person makes himself binding for free to someone to whom another is already connected or is to be connected to do what the other should do if he does not" . The Codex Maximilianeus Bavaricus Civilis (CMBC) of January 1756 expressly provided for the accessory nature of the guarantee in § 8 CMBC . The author of the CMBC, Wiguläus von Kreittmayr , Germanized the Roman "fideiussio" as "fidejussion" in 1765, but this did not catch on. The General Prussian Land Law (APL) of June 1794 regulated the guarantee in detail (I 14 § 200-401 APL) and designated it as security (I 14 § 200 APL), which had to be submitted in writing (I 14 § 203 APL) and in As a rule, it could not be taken over by a "woman" (I 14 § 226 APL). The APL classified it as an accessory (I 14 § 251 APL) liability of the surety in the event that the debtor does not fulfill his obligation (I 14 § 257 APL). In the case of a guarantee, the surety entered into all rights of the obligee against the debtor (I 14 § 338 APL), there was the joint guarantee (I 14 § 378 APL), counter-guarantee (I 14 § 380 APL) or absolute guarantee (I 14 § 393 APL). The ADHGB from May 1861 declared the commercial guarantee to be an absolute guarantee (Art. 281 ADHGB).
In France, from March 1804, the Civil Code (CC) regulated the surety ( French cautionnement ) from Art. 2011 CC, according to which the surety undertakes to pay off the debt of the debtor if the debtor does not pay it himself. It is accessory (Art. 2013 CC) and hereditary (Art. 2017 CC), there is a joint guarantee (Art. 2025 CC), in the event of a guarantee the surety assumes all rights of the obligee towards the debtor (Art. 2029 CC). The ABGB , which has been in force in Austria since January 1811 and is based on the Roman institutional system , regulates the guarantee from § 1344 ABGB.
The guarantee was only used very late in the German banking industry as collateral for credit . The first Prussian Savings Bank Act from 1838 provided for mortgages , domestic government bonds , Pfandbriefe or “other completely safe” investments as collateral . In the 1850s, Cologne's banking system was mostly based on blank loans for industrial financing . In 1856, unsecured loans and loans secured by guarantees at the savings banks reached a volume of 12 million marks, while personal loans secured by pledges made up 6 million marks and mortgage loans ( real loans ) made up 40 million marks. On the other hand, the motto of their founder Hermann Schulze-Delitzsch in 1904 was true of the credit unions : "The indispensable keystone in the organization of personal credit is the guarantee". In 1910, the total loan volume of all credit unions was based on a share of 77.24% secured by guarantees.
During the preparatory work for the BGB in 1866, the commission proposed a legal definition of the guarantee from Article 927 of the Dresden draft of a law of obligations : "Through the guarantee contract, one contracting party (surety) is obliged to the other contracting party, the creditor of a third party, in addition to the latter ( Main debtor) to be responsible for its liability. ”It has been preserved today as a legal definition in BGB.
Legal situation in Germany, Austria and Switzerland
The Kautelarpraxis has produced the following types of guarantees in particular:
- Down payment guarantee
- Bid bond
- Bid bond
- Performance bond
- Warranty guarantee
- Delivery guarantee
- Rental guarantee
- Litigation guarantee
- Tax guarantee
- Contract performance guarantee
- Payment guarantee
- Customs guarantee
In France, the Civil Code (CC) counts as "personal securities" ( French sûretés personnelles ) in Art. 2287-1 CC the surety ( French cautionnement ), the autonomous guarantee ( French garantie autonome ; Art. 2321 CC) and the letter of intent ( French lettre d'intention ; Art. 2322 CC). In Italy , the guarantee ( Italian fideiussione ) has been regulated since March 1942 in Articles 1936 ff. Codice civile . The surety ( Italian fideiussore ) then takes on the obligation towards the obligee to take responsibility for the fulfillment of a third party liability. In England and Wales the guarantor promises ( English guarantor ) in the guarantee agreement ( English contract of guarantee ) for the current or future debt of another person ( English principal debtor ) pay. In common law it is based on the “Statute of Frauds” (Section 4) from 1677. The American law distinguishes between warranty ( English guaranty ) and surety ( English suretyship ). The promise of the guarantor ( English surety but) here resembles an assumption of debt , because someone has taken a liability already liable debtor and the creditor for the performance only may require a time. In Scottish law there is a similar concept to "caution".
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- Christian Förster: The fusion of surety and guarantee: a new systematization from a comparative legal perspective . Mohr Siebeck, Tübingen 2010, ISBN 978-3-16-150277-4 .
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- Werner Ogris, Personal Security in the Late Middle Ages , in: ZRG (GA) 82, 1965, pp. 140 ff.
- Sachsenspiegel, Landrecht II 5 § 1, p. 126
- Schwabenspiegel, Art. 289
- Alfred Schirmer, Dictionary of German Business Language - on Historical Foundations , 1991, p. 98
- Christian Wolff , Principles of Natural and International Law , 1754, § 569
- Codex Maximilianeus Bavaricus Civilis, 4, 10 § 8
- General Land Law for the Prussian States , Volume 2, 1794, p. 578 ff.
- Heinrich Gottfried Wilhelm Daniels, Code civil , 1805, p. 825
- Alfred Krüger, Das Kölner Bankiersgewerbe from the end of the 18th century to 1875 , 1925, p. 108 ff.
- Hermann Schulze-Delitzsch / Hans Crüger, advance payment and credit associations as Volksbanken , 1904, p. 95
- Hans Schönitz, Der Kleigewerbliche Kredit , 1912, p. 261 (FN 57)
- Restatement of Securityship, 1995, p. 228, § 89
- Christian Förster, The Fusion of Guarantee and Guarantee , 2010, p. 89
- Aurelia Colombi Ciacchi, The protection of the guarantor in Europe - report on a comparative legal research project and its second annual conference , in: Consumer and Law, Volume 2006, pp. 141, 144.