The civil code governs the guarantee on art. 1936 cc describing the notion from the subjective point of view and qualifying the guarantor as “the one who, by obliging himself personally to the creditor, guarantees the fulfillment of an obligation of others “.
The surety obligation can originate both from the law and from the private will, usually it is a contract that requires the agreement between the guarantor and the creditor, since it maintains its effectiveness even if the debtor (the subject required to perform the guaranteed service) ) has no knowledge of it.
The store of guarantee not in fact pursues an aim of taking over of the principal obligation risk, but a function of guarantee of the obligation through the enlargement of the subjective basis, which is entirely independent of the actual risk of default and, therefore, from the possibility that the principal debtor does not fulfill his obligation, or that his assets are insufficient to satisfy the creditor’s reasons ( see Cassation, sent. No. 6407/1998 ).
The guarantee function renders the debtor’s prior consent and the acceptance of the contract superfluous and legally irrelevant, for the stipulation of which no particular solemn forms are required, but the guarantor, a natural person or even a company, must express his will in express and unequivocal manner (art. 1937 cc).
The accessory character is inferred from the art. 1939 of the Civil Code, according to which the surety is not valid if the principal obligation is not valid, therefore the termination of this has effect also on the other.
An exception to the principle is the guarantee that is given for the obligation assumed by an incapacitated person, which retains its validity even if that of the principal obligation is no longer valid.
Therefore, the obligation of the guarantor takes the form of an ancillary obligation, the object of which is naturally identical to that of the principal obligation, and, unless otherwise agreed, extends only to all the accessories of the principal debt and to the expenses (Article 1941 of the Civil Code ); if it exceeds the debt or is contracted under more onerous terms, it is valid within the limits of the principal obligation (Article 1941 of the Civil Code, paragraph 2).
It follows that the agreements between creditor and debtor amending the guaranteed principal obligation are not effective with respect to the guarantor ( see Cassation, No. 12279/2004 ).
If the guarantee in duriorem causam is not admissible, the so-called cd is deemed to be lawful. guarantee in leviorem causan, ie the stipulation of a partial guarantee, limited or less onerous, since it is lawful for the parties to contractually change the liability regime of the guarantor by limiting its implementation within certain borders or by subjecting it to mutually agreed terms and conditions ( see. Cassation, judgment No. 1812/1996 ).
Article. 1944 cc governs two types of surety, one in solidarity and one simple or with the benefit of preventive enforcement.
The joint guarantee is the most widespread hypothesis, which provides that the guarantor and the principal creditor are jointly and severally liable, so that the creditor may request the fulfillment of the obligation regardless of either use or the other.
The guarantor who paid the debt is subrogated to the rights of the creditor (1949 cc) and may take recourse actions against the debtor even though he was not aware of the loan given (art. 1950 cc).
The right of recourse includes the principal, interest and expenses that the guarantor has incurred and the right to legal interest on the amounts paid since the day of payment. Only if the debtor is incapable the regress of the guarantor is admitted only to the extent of what is directed to his advantage.
The CD. beneficium excussionis recognized to the guarantor, according to which the creditor will have to execute the assets of the principal debtor before turning to him for payment of the debt, must be agreed by the parties in the contract expressly. In this case, the guarantor, who is agreed by the creditor and intends to make use of the benefit of the enforcement, must indicate the assets of the principal debtor to be subjected to execution.
Article. 1946 cc admits the cd. co-payment : if there are more than one person who has given a surety to the same debtor and to guarantee the same debt, each of them is obliged for the entire debt unless the benefit of the division has been agreed.
The co-owners have the right, in the event of payment of the obligation, to recourse against the other co-obligors for the share due to each one. This does not happen due to the different situation of the cd. multiple guarantee, where several guarantors lend the guarantee independently and independently of the others.
The institution of the so-called surety bond ” omnibus ” provides that the guarantor undertakes not to guarantee the payment of a single debt of others, but of all present and future debts that he (often an entrepreneur) has assumed or will assume towards the creditor, which in practice is often a credit institution.
Article. 1938 of the Italian Civil Code, endorses the institution by stating that the guarantee can also be given for a conditional or future obligation with the provision, in the latter case, of the maximum guaranteed amount.
The rule has been modified by the art. 10 of Law 154/1992 which imposed the maximum guaranteed credit limit: in fact, the economic function that characterizes this type of guarantee has the purpose of facilitating recourse to bank financing without prejudice to the creditor’s reasons. The guarantor is often a subject who is not interested in the operations financed by the bank, and assumes a high financial risk that can not be foreseen compared to those deriving from a normal guarantee.
The jurisprudence has established that the bank in which favor was previously given an omnibus guarantee without limitation of amount, still in progress at the date of entry into force of the provision of Law 154/1992, retains the right to the guarantee only for debts to of it arose and not also for the following ones, for which a new surety agreement is required in the forms provided for by art. 1938 cc ( see Cassation, sent. No. 17860/2007 ).
However, the legitimacy of the guarantee will have to be carefully evaluated in order to ascertain that the indication of a disproportionately high limit amount does not translate into a merely apparent limitation substantially circumventing the rule of law ( see Cassation, sent. N. 27005/2008 ).
The contractual parties, guarantor and creditor, must respect the principles of correctness and good faith; the bank, in particular, has the duty to control the financial situation of the debtor by not being able to rely solely on the assets of the guarantor in the face of the manifest incapacity of the principal’s assets.
The credit institution, although guaranteed by a surety, has the duty to behave towards the principal debtor according to the criteria of sound credit management and integrates a behavior contrary to good faith (objective) – sanctioned with the ineffectiveness of the guarantee – if, despite the debtor’s foreseeable default, he decides to proceed with the operation relying only on the liability of the guarantor ( see Court of Cassation, judgment No. 6414/1998 ).
A particular example of a surety is represented by the bank guarantee, namely that granted by the bank to debtors who request it and which generally become customers of the credit institution.
Generally, depending on the amount of the credit signed, a commission is required, which is generally around 1% of the value net of taxes, to be paid regardless of the accessory nature of the contract.
Furthermore, often the banks granting the surety request the guaranteed also the stipulation of a counter-surety agreement with which the latter undertakes to make available all his assets for the return to the bank of any amount paid in his place.
In addition to the bank guarantee, in order to be guaranteed quickly it is possible to have recourse to another means: the insurance guarantee.
In this case it is an insurance company that assumes responsibility towards a creditor, for a set amount.
Even if formally it is a contract similar to any other type of surety, the insurance guarantee represents, in reality, a mixed contract with a predominant guarantee function: in fact, the procedures with which it is stipulated are the same as those generally provided for for other insurance contracts.
The times to obtain an insurance surety are much faster than those required to obtain a bank guarantee and generally do not reach a week.