Back guarantee
The counter-guarantee is a guarantee that the obligation of a guarantor to secure ( "Vorbürge") by a further guarantee.
Legal bases
The additional guarantee is not regulated by law in Germany , but recognized by case law. The conditions on the guarantee (§ § 765 ff. BGB ) apply to the subsequent guarantee without restriction. The guarantee is the liability of the guarantee directly to the creditor for the fulfillment of the guarantee by the surety (= preliminary guarantee). The obligation of the advance guarantee is the main debt of the subsequent guarantee. In contrast to the counter-guarantee , the creditor can make direct use of the subsequent guarantee. With this type of guarantee, the obligee has a legal relationship with both the previous guarantee and the subsequent guarantee. If the advance surety cannot pay in whole or in part if the obligee has a claim, the obligee will contact the subsequent surety, to whom the claim against the main debtor will then be transferred ( Section 774 (1) sentence 1 BGB). Pros and Nachbürgen are no Mitbürgen ( § 769 BGB), because they are not liable jointly and side by side , but at different stages in succession .
Guarantee case
If the advance guarantee pays, it acquires the main claim in accordance with Section 774 (1) sentence 1 BGB; the additional guarantee expires in accordance with Section 767, Paragraph 1, Clause 1 of the German Civil Code because the secured advance guarantee has expired as a result of fulfillment in accordance with Section 362, Paragraph 1 of the German Civil Code. If, on the other hand, the pre-surety does not fully or partially meet its obligation from its surety, the obligee can claim against the post surety. Under German law, the additional guarantee is dependent on the main guarantee ( accessory ). If the debtor fulfills his obligation without making use of the advance guarantee, not only the (main) guarantee but also the subsequent guarantee is not applicable.
If the subsequent surety fulfills the debtor's obligation, the creditor's claim against the debtor is transferred to him (Section 774 (1) BGB). Since the additional guarantee and the secured main liability may not be separated, the additional guarantee also acquires the main liability with the advance guarantee. The subsequent guarantee also increases the creditor's guarantee against the previous guarantee.
It is controversial whether the main debtor can raise objections from the internal relationship to the previous surety against the subsequent surety .
Switzerland
In Switzerland, the additional guarantee - like the counter guarantee - is expressly regulated by law. Art. 498 para. 1 OR provides that the subsequent surety who "has committed to the obligee for the fulfillment of the obligation assumed by the prior surety is liable alongside the latter in the same way as the ordinary surety alongside the main debtor".
Web links
Individual evidence
- ^ BGH NJW 1979, 415
- ↑ BGHZ 73, 94 , 96
- ↑ Kurt Schellhammer, Law of Obligations according to the Basis of Claims: including BGB General Part , 2014, p. 448
- ↑ BGHZ 73, 94, 96 f.
- ↑ for this z. B. Dietrich Reinicke / Klaus Tiedtke , surety law , 2008, margin no. 427: the main debtor should not be worse off than if the advance guarantee had paid; on the other hand, Karl Larenz / Claus-Wilhelm Canaris , Textbook of the Law of Obligations , 1994, p. 20 f .: Agreements between the principal debtor and the previous surety are of no concern to the subsequent surety who has committed himself to the creditor
