The completion of many financial transactions requires the furnishing of a written guarantee under which the guarantor undertakes to perform the debtor’s obligations to the creditor if the first fails to perform them.
What is the guarantee and what are its legal elements and effects? Guarantees in Lebanese law in the following.
Definition of sponsorship and its pillars
A guarantee is a contract under which a person is committed to the creditor to execute a debtor if the debtor does not execute it (p. 1059), and this person is the guarantor.
Guarantees must be provided in general terms of the contract:
* Satisfaction in bail : Satisfaction must be in accordance with the general rules, free from defects that are flawed, and be absent and completely absent if given wrongly, taken with deception, or snatched by intimidation. The original expression of the will to be explicit, or implicit. But the guarantee is not appreciated, but the will to make sure of the instrument must be manifest explicitly (1059 AD), and it is not correct to assume that the consent of the guarantor must be explicit. However, it is not necessary for the contract to include literally the word kafala, but rather to benefit from every contract whereby a person commits a debtor to a debtor. And that the guarantor’s will alone is insufficient for the sponsorship contract to arise. It must be accompanied by the creditor’s willingness to accept that guarantee explicitly (1061 MA). Open acceptance does not mean acceptance in writing, or acceptance subject to ceremonial decrees, but is the sure acceptance. If the debtor expressly objects to the guarantee, it does not establish a binding legal bond between the debtor and the guarantor, but the guarantor is obliged to guarantee it only to the creditor (p. 1062).
* Eligibility in the guarantee contract: For the creditor, the guarantee contract is considered as a voluntary contract according to the original, where the creditor is considered as the donor to him. For his part, he is required only to be able to contract. It is sufficient to be distinguished (ie aware of his actions) if he does not pay for bail In which he is entitled to act, if he has paid in return for such bail. As for the sponsor, bail is a voluntary act, and it must be eligible to donate as long as it is committed to a debt guarantee for which there is no interest. The guarantee is not valid from the minor, even with the permission of his father, or his guardian if he has no interest in the case that he is guaranteed (1055 MA). Any guarantee given by any person who is not entitled to be bound by a mental defect shall be deemed null and void, making him unaware of his actions or bankrupt. However, the guarantee is obtained in the name of the legal entity from the legal representative.
* Subject of Guarantee: In order for the subject of the guarantor’s liability to be possible, the original guarantor must be present and correct. It is also required for the validity of the guarantor’s obligation to have a certain subject, or to be appointed. And that the sponsorship is not aimed at an illegal purpose, otherwise it is invalidated. The guarantor’s obligation to establish and maintain the existence of the original guaranteed guarantor shall be linked, since the guaranty is a continuous contract, and without such obligation the guaranty shall not arise. However, the subject of the guarantee may be a possible future liability, such as the security of the expropriation on the ground of merit, future or undefined, provided that the appointment is possible thereafter; such as the guarantee of an amount to be judged by a person. In this case, the guarantor’s obligation determines what the original debtor must pay (p. 1057). The debt arising from the opening of a credit with a financial bank may not be opened yet. If the sponsor does not appoint a value, he or she is liable to a reasonable extent consistent with the status of the person to whom the credit has been opened. The obligation provided for in the first paragraph of this article shall be rescinded as long as the person who commissioned the opening of the credit has not commenced its implementation (p. 1054). (1056 m); if the subject of the original debtor is a gambling or betting debt, or a debt of immorality, or a debt whose subject does not exist, is impossible or illegitimate, it is a false debt because And the guarantor’s obligation in this case shall be void null and void in accordance with the invalidity of the original guaranteed guarantor. The guarantee can not exceed what is owed to the original debtor, except in respect of the term (1064 AD).
* Reason for holding the guaranty: The guarantor is obliged to confront the creditor to allow the debtor to obtain credit from the creditor, or any other advantage. This is due to the dependency formula of bail, which is a compelling reason for the guarantor, and requires that it be present to protect the guarantor so as not to commit to confronting the creditor without reason. The guarantee can not be considered free of charge, unless the guarantor waives his or her right of recourse to the original debtor in a manner that leads to the creditor. If the guaranty results in favor of the creditor, by guaranteeing the guarantor of a previously irrevocable debt, without receiving anything in return for the benefit of the debtor, the guaranty shall be voluntary and the guarantor shall be liable to pay the creditor.
Types of warranty
* Specific guarantee and undefined assurance: The will of the parties to the bail contract is where the extent of the guarantor’s liability can be determined. If the debtor does not exceed the debt that the guarantor has guaranteed, nor the thing that he has guaranteed, the guarantee is called specific. As for the non-specific guarantee, the guarantor shall be liable to pay the full amount owed to the original debtor without exceeding it, and in accordance with the conditions to which the debtor has committed. If the guarantee is not explicitly specified in a certain amount, or in a known part of the debt, the guarantor also guarantees the fault, damage and expenses incurred by the original debtor for failure to perform the obligation. The guarantor shall not be liable for the new obligations of the original debtor after the establishment of the secured obligation, since the guarantor’s liability extends to the original obligation as it was at the time the bail was made; if the guarantor has expressly guaranteed the performance of all obligations owed by the debtor on account of the contract, Of the obligations under which the debtor may be liable under the contract (article 1066).
* Simple guarantee and guarantee of solidarity: The guarantee in origin is ordinary or simple; it does not include solidarity without express text (p. 1069). The guarantor is the guarantor in which the guarantor is in solidarity with the debtor so that the creditor may claim either of them with all the debt, without the sponsor being able, if the claim is first directed to him, that he can not be sued before the debtor’s claim, Request to divide the claim between him and other guarantors. There is no solidarity between the guarantors unless stipulated in the contract, or if each of them has held the guarantee separately for the entire debt, or when the guarantee is considered a business of the guarantors (1075 AD). The guarantor may not cling to the original debtor if he has expressly amended this right, particularly if the debtor has committed himself to the original debtor (1073 CE). If there are several mutual guarantors, and one of them paid all the debt on the due date, he has the right to refer to the other guarantors according to their share and share, and he is entitled to recourse to them with a share of the loss of solvency of them (AD 1082).
* Guarantees for the first request : A personal commitment by the sponsor at the request of the sponsored person against a third person to pay the latter a sum of money on the basis of the first request issued by him, without the right to invoke the relations between the sponsored and the beneficiary to refrain from paying, Reason was. It can not be said that there is a guarantee for the first request, unless it is clear from its content, and it is explicitly and clearly an independent guarantee under which the sponsor undertakes to pay a sum of money for the debt secured on the first request of the beneficiary without restriction or condition or delay, without the possibility of invoking defenses Derived from the basic contract.
* Attendance Guarantee: A contract committed by a person to bring another person to the courts, or when the debtor is due, or when required (1098 AD). If the guarantor undertakes to bring a person at a certain time, it is necessary to perform that debt if he does not attend it at the appointed time despite his ability to do so. This guarantee is valid only for those who are eligible to donate. And are not explicitly made, ie they are not taken as evidence or implicitly deduced. The duty of the sponsor to attend is that the sponsored person must be brought in on the day and place agreed upon in the contract, and bringing the sponsored person before the appointed day does not absolve the sponsor. If the guarantor is on the day of maturity in the possession of the judicial authority for reasons other than bail, the guarantor shall be acquitted, provided that he informs the creditor (p. 1103).
Effects of sponsorship
* The relationship between the guarantor and the creditor: These effects are concentrated in that the creditor to ask the sponsor to meet the guaranteed guarantee. He may execute his money to obtain his right. However, the creditor must first request the debtor, before claiming the guarantor, no claim by the creditor to the guarantor, unless the original debtor is in the event of delay in carrying out the obligation (1070 ppm). It must also be applied to the funds of the original city to fulfill its right, before it is implemented on the sponsor’s funds. In the case of multiple guarantors of one religion, and in one contract, with their lack of solidarity, the creditor shall not return to any of them, except as much as his portion of the debt. If the creditor returns to the guarantor and fully meets his rights, he must hand over to the guarantor or guarantors the necessary documents to be used in recourse to the debtor. He also undertakes to transfer the guarantor’s debt to the guarantor or guarantors. However, this does not require that the debtor be first brought before the debtor or warned to pay; He has the right to claim the guarantor directly, but the law allows the guarantor the right to sue the debtor first, that is, obligating the debtor to first claim the debtor’s city in order to obtain his debt. Nothing precluded the possibility that the guarantee would exceed what was owed to the original debtor in respect of the term; that is, the maturity of the guarantee period exceeded the original debt. But the extension of the term set by the creditor to the original debtor will benefit the guarantor unless it is caused by the debtors’ hardship. The extension granted by the creditor to the guarantor does not benefit the original debtor, unless the creditor declares otherwise (1094 m).
The creditor can not pursue the guarantor until the agreed deadline has been reached. But the creditor, can protect. To take precautionary measures against the guarantor provided that it justifies the existence of necessity and the need to take them. The creditor has the right to pursue the case before the deadline in the following cases: If the guarantor dies before the debt is due, the creditor is entitled to pursue the heirs of the sponsor without waiting for the due date. Or if the solvency of the guarantor is declared, where the debt becomes due and the creditor is entitled to demand that it be included in the debts of the group of creditors (1071 AA). The guarantor is entitled to ask the creditor, at the commencement of the trial, and before each defense in the first instance, to first deposit the original debtor in his movable and immovable property, and to appoint him to carry out the execution (p. 1072). However, the guarantor may not cling to the original debtor’s claim, if he or she has expressly amended this right, or if the debtor has committed to the original debtor (p. 1073). When the conditions of payment are satisfied, the debtor must first be accepted. This has two important effects: First: the execution of the execution of the guarantor’s funds; secondly, the creditor must execute the debtor’s money that the sponsor has appointed. If several persons are guaranteed one debt with one instrument, each of them is required only to the extent of his share, and he has the right to cling to the creditor by splitting the claim. There is no solidarity between the guarantors unless stipulated in the contract, or if each of them has held the guarantee separately for the entire debt, or when the guarantee is a business transaction between the guarantors (1075 AD).
The creditor’s obligations in fulfilling the debt: If the debt is fulfilled to the creditor, this creditor is obliged in the face of the guarantor to hand over the necessary documents to exercise his right of recourse against the original debtor and to transfer the guarantor’s insurance to the sponsor. The guarantor, Unless a supporting bond is evidenced by the creditor, or other documents proving the fall of the debt (p. 1081).
* The relationship between the guarantor and the debtor : The guarantor who fulfilled the original obligation to return to the debtor all the payment, even if the bail was given without knowledge of the debtor, and also the right of recourse to the expenses and damages caused by necessity for bail. Any act of the guarantor, other than real fulfillment, would drop the original obligor and discharge the debtor’s debt. It shall be considered as a fulfillment and shall be open to the guarantor to refer to the debtor with the principal of the debt and the related expenses (1080 mA).
There are four conditions that must be met so that the sponsor can use the right of recourse against the debtor:
– First: The guarantee has been held for the benefit of the debtor, without objection.
Secondly: The guarantor must fulfill the debt.
Thirdly , the sponsor must inform the debtor before fulfilling the obligation.
Fourthly , the order of the debt should be settled.
A guarantor who has properly fulfilled the debt replaces the creditor with all his rights and privileges over the original debtor as much as the amount he paid, and to the other guarantors as much as their shares and shares. However, such remedies would not modify the private agreements between the original debtor and the guarantor (p. 1084).
* The relationship between the guarantor and other guarantors: If multiple guarantors of one religion and one contract, or successive contracts, and kept each of the right of division, the origin that religion is divided them. And each of them is required only to the extent of his share of the debt (1075 AD). The failure of one of them is not borne by other sponsors. But it is the creditor who bears the share of the struggling sponsor. If one of these guarantors fulfills his share, it is not permissible for him to go back to other guarantors with anything. However, if all religion is fulfilled, even though it does not comply with that, it has no right to refer to other guarantors except on grounds of unjust enrichment according to the general rules. If there are several mutual guarantors and one of them pays all the debt on the due date, he has the right to refer to the other guarantors according to their share and share. He also has the right to refer to them with a share of the loss of solvency (1082 AD).
The fall of bail
* The fall of sponsorship by the following:
All the reasons for nullity or fall related to the original obligation fall the guarantee (1087 mA), and for these reasons:
– The fall of the original obligation to fulfill: If the debtor has fulfilled the debt, his obligation has fallen, and the dependent of the guarantor. If the fulfillment was in part, the sponsor’s innocence was as much as that. The validity of the sponsor’s innocence requires that the fulfillment of the debt be valid. If the fulfillment is null and void, the debt will be returned to its guarantees and the guarantor will not be acquitted.
– The fall of the original obligation to pay in return: When the creditor accepts a choice other than what is owed to his debt, the sponsor, even if he is in solidarity with the debtor, discharged his debt, even if the creditor was removed from the creditor due to the merit, or his creditor due to his hidden defects (1096 AD). P.).
– The fall of the original obligation to renew the debt: The renewal of the debt between the creditor and the original debtor absolves the guarantors, unless they have accepted the new debt. However, if the creditor requires that the guarantors be included in the new debtor, and they do not accept them, the previous obligation does not fall (Article 1092).
– The fall of the original debit by clearing: The clearing the attachments of the positive (mortgage, movable, and bail) to the proportion of the projection of the same obligation (m 333 m). The deduction is made when the act of fulfillment is performed, but to the extent of the lesser debt. The Court may not judge it on its own. However, the guarantor may ask for a set-off, as to the creditor’s obligation to the original debtor (p. 334).
– The fall of the original debtor by the union: The meeting of the two accounts of the creditor and the original debtor in one person shall absolve the sponsor. If such meeting takes place in the person of the original debtor due to the death of the creditor and the original debtor is a heir with others, the guarantor shall be discharged as much as the debtor’s share (p. 1093).
– The fall of the original obligation of discharge: The discharge of debt from the debtor absolves the sponsor. But the discharge of the guarantor does not absolve the debtor. The discharge of one of the guarantors without the consent of others absolves them as much as the share of the guarantor who has discharged his obligation (1091 AD).
– The fall of the original positive over time: The obligations are dropped by the failure of the creditor who fails to invoke his rights, the cloud of a period of time (AD 344). The passage of time that has been done for the benefit of the debtor benefits from the sponsor (1095 AD). If the guaranteed debt expires over time, the guarantee is terminated by its termination.
– The fall of the original obligation by its nullity: All the reasons for invalidity, or the fall of the original obligation fall under the guarantee. If this obligation is void, the guarantor becomes void, because the guarantee of the false obligation is also void (p. 1087).
* The fall of the guaranty by an original way:
– The fall of the guaranty by the union: the guarantor’s obligation to settle the debt between the creditor and the guarantor may expire without the expiry of the secured debt, such as the creditor dies and the sponsor inherits. The guarantor’s obligation is in an original state because he has inherited the creditor and has become a creditor to himself. But the guaranteed debt does not expire. A creditor who has become a creditor by way of a creditor may return to the debtor with the same debt, as the creditor was entitled to return to the debtor before his death (p. 1093). If the debtor and the debtor combine to inherit the debtor, the guarantee also expires without the expiry of the guaranteed debt.
– The fall of the guaranty in the discharge: If the creditor acquires the guarantor’s guarantee from the bail, he acquires the debt of the latter, without affecting the survival of the original debtor. The reverse is not true, meaning that if the original debtor is discharged, the bail inevitably falls in favor of the fall of the original debtor. The creditor can not retain the bail after it has been delivered to the original debtor by the secured obligor (1091 MA).
– The fall of the original obligation by meeting the cancellation condition or by its due date: The guarantee shall be canceled by the fulfillment of the cancellation condition without having any effect on the guarantee. It is also possible that the term of the contract may be terminated by the end of this period in the guarantee contract without affecting the original obligation. However, if the guarantee contract is unlimited, it may be terminated by the sponsor (p. 245). However, such termination has serious consequences for the creditor in the case of credit given by the banks.
– The default of the guaranty by the creditor: The guarantor’s discharge shall be discharged if the creditor’s substitute in the rights becomes impossible due to the act of the creditor (1089 CE); such as the creditor’s loss of the guarantor’s insurance that was determined at the time of the contract, His guarantee to the debtor.