Guarantee (Austria)

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In the Austrian law of obligations, the guarantee is an obligatory means of security for the satisfaction of the obligee in the event that the first debtor does not fulfill the obligation (§§ 1342 ff., 1346 ABGB ). The guarantee comes about through a contract between the obligee and the third party (guarantee contract). The surety's declaration must be in writing (Section 1346 (2) ABGB).

Demarcation

While the lien provides security in rem, the guarantee provides personal security in that the surety guarantees the obligee personally that he receives the performance promised by the debtor. Other personal security options are in accordance with § 1344 ABGB the privative assumption of debt and the assumption of debt .

species

Depending on the liability requirements, a distinction is made between the following types of guarantees:

  1. ordinary surety
  2. Liability as "surety and payer" (§ 1357 ABGB)
  3. Deficiency guarantee (§ 1356 ABGB).

In addition, there are numerous other types of guarantee that serve specific purposes, such as the trade guarantee or the bill of exchange and check guarantee.

Ordinary surety

The ordinary or simple guarantee is a unilaterally binding contract through which the surety undertakes to the creditor of a third party (the so-called main debtor ) to guarantee the fulfillment of the third party's obligations .

According to § 1344 third alternative ABGB, a third party (surety) can satisfy the obligee if the first debtor does not fulfill his obligation. The contract between the creditor and the surety is the guarantee contract (§ 1346 ABGB), which usually contains the objection of the advance action (§§ 1355, 1356 ABGB). In the case of a surety, the surety assumes the rights of the obligee and is authorized to demand reimbursement of the debt paid from the debtor (§ 1358 ABGB).

The creditor wants to protect himself with the guarantee in the event of his debtor's insolvency . Most often the third party is a borrower and the creditor is a credit institution granting the loan . The principle of accessoryness applies (e.g. § 1363 ABGB): The guarantee depends on the main claim. If this expires or if it does not come into effect, the guarantee is not effective. So the surety cannot vouch for more than the main debtor has to pay. If the obligation is fulfilled, the cancellation of the guarantee can be requested (§ 1366 ABGB).

Liability as "surety and payer"

Deficiency Guarantee

Web links

Individual evidence

  1. ↑ private law securing means online textbook civil law, Section 15 A, accessed on November 17, 2019
  2. ↑ Bürgschaft oesterreich.gv.at , glossary of terms , accessed on November 17, 2019
  3. ↑ cf. The guarantee: §§ 1346 ff ABGB online textbook on civil law, Chapter 15 A IV 4, Types of guarantee , accessed on November 17, 2019