Статья посвящена вопросам, связанным с поручительством и гарантией. Верховный суд Австрии недавно признал, что факсимильная копия собственноручно подписанного поручительства является письменной формой доказательства, которая требуется по законодательству Австрии. Особое внимание автор уделяет вопросу о необходимости “встречного” подписания гарантии.
Written consent in faxed suretyships
The Supreme Court recently settled the question of whether a hand-signed faxed declaration of suretyship is valid. Although the prevailing doctrine would suggest its validity, the issue was still in dispute.
Suretyships under Austrian law are dealt with in Section 1346 of the General Civil Code, which states that in general, suretyships must be provided in written form.
In defining what is meant by ‘written form’, Section 886 of the code states that the signature of the parties is necessary for the written form requirement to be met. This requirement aims to ensure that the content of the declaration and the representatives of the parties providing such declaration are sufficiently determined. Furthermore, under Section 1346 of the code, only the surety grantor need sign the declaration of suretyship. The signature of the beneficiary and the primary debtor is not required.
For practical reasons, questions have arisen as to whether a signed declaration of suretyship will fulfil the formal requirements if the declaration is transmitted by fax. To answer this question, the purpose of the legal formality must be considered.
The main purpose of the requirement is to function as a warning. The written form allows the surety grantor to be made aware of its obligations and its commitment. This is particularly important as the surety grantor often assumes a non-calculable risk and gains no economic benefit from its financial assistance. Moreover, the written form is intended to prevent decisions being made in haste. The formal requirements also serve to provide proof of the integrity of the declaration of suretyship.
Although such functions are regarded by some as non-existent if the declaration of suretyship is transmitted by fax, it is generally accepted that the aim of the formal requirements is to prevent the surety grantor from taking premature action. Thus, it is the warning function that is decisive.
However, the question further arises as to whether transmission of a signed declaration of suretyship by fax has the same warning function as, for example, transmission of the original document by mail. When a surety grantor sends its personally signed declaration by fax, it leaves its sphere of influence and is delivered to the recipient, with the same effect as delivery by mail. As a result, once a signed declaration of suretyship has been sent by fax, the formal requirements can be considered fulfilled and the suretyship will be seen to be valid.
Thus, the Supreme Court has decided that a hand-signed declaration of suretyship sent by the grantor to the beneficiary by fax will fulfil the prerequisite of written form under Section 1346 of the code.
Counter-signature requirement for guarantees
Clarity on the formal requirements on the part of the beneficiary for a valid guarantee is equally important. However, it is unclear as to whether the guarantee must be counter-signed by the beneficiary in order to be valid under Austrian law, or whether it is possible for a guarantee also to become effective implicitly, by tacit approval of the beneficiary.
Section 880a of the code deals with guarantees, stating that, in general, they need not be provided in written form. However, with regard to the assumption of liability for performance of a person other than the obligor, case law has developed that requires the submission of a signed document analogous to that under Section 1346 of the code (on suretyships). Furthermore, additional formal requirements apply, such as specifying the beneficiary of the guarantee, the guarantor, the third party whose obligation is guaranteed and the performance for which the failure thereof is covered by the guarantee (eg, payment default).
In general, there is no formal requirement that the beneficiary accept a guarantee by counter-signing it. A guarantee also becomes effective implicitly by the beneficiary taking delivery of it without counter-signing it, which is nearly always the case with abstract guarantees (eg, bank guarantees).
The reason lies in the unilaterally obligating character of the guarantee, as the guarantor incurs the irrevocable and autonomous obligation to vouch for a third party’s failure to perform its duties.
In the case of such third-party relationships, in which the guarantor guarantees the obligation of a third party, no oral or written acceptance of the beneficiary is required, as the beneficiary of a guarantee acquires only rights under the guarantee. Although there is no court precedent settling this issue, it is the general view that Austrian law does not require a counter-signature from the beneficiary for a guarantee to be valid. This is also the case with suretyships, which equally must be signed only by the grantor of the surety.
However, the Supreme Court has recently ruled on the meaning of ‘written agreement’, arguing that it is necessary that both parties actually sign the document or, if made through offer and acceptance, that the offerer receive a copy of the accepted offer from the offeree. This may become important if suretyships or guarantees contain jurisdiction or arbitration clauses that have to be agreed on.
Автор: Tibor Fabian
Источник: http://www.internationallawoffice.com/Newsletters/Detail.aspx?g=fc9d19b2-b21c-427d-9937-496b40152da2&utm_source=ILO+Newsletter&utm_medium=email&utm_campaign=Banking+Newsletter&utm_content=Newsletter+2014-03-28