[ Preliminary and condensed version! Please do not cite without the consent of the author! ]

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1 University of Innsbruck Faculty of Law Institute of Civil Law Univ.-Prof. Dr. Andreas Schwartze, LL.M. (EUI) Head of Institute European, Comparative and Private International Law Personal guarantees between commercial law and consumer protection General Report for the XIXth International Congress on Comparative Law 2014, Vienna, Austria III.A. Commercial Law [ Preliminary and condensed version! Please do not cite without the consent of the author! ] 1. Economic aspects It seems to be very difficult to estimate the economic importance of personal guarantees even within one country, because statistic reports if available are usually limited to certain areas of lending and security. In any case personal guarantees are very relevant in the consumer credit market as well as for business purposes. For the consumer area this is visible for example in Germany, where a fairly old study from 1982 has identified about 20% of consumer credits as secured by a personal security 1, or in Austria, where current statistic figures from 2014 show a quota of nearly 35% 2. A study from 1995 has estimated that approximately 10% of the Danish households were bound as guarantors 3. In the field of business transactions especially small and medium sized enterprises (SMU) are depending on 1 German Report, 2. 2 Austrian Report, 1. Innrain 52 Christoph-Probst-Platz A-6020 Innsbruck Telefon +43 (0) 512 / , (Sekr.) Fax +43 (0) 512 / andreas.schwartze@uibk.ac.at Internet /evip/

2 2 personal securities, e.g. in Germany between 2007 and 2010 some 30% of these companies needed this kind of guarantees 4. However, in the aftermath of the global and then European financial crisis risk aversion of guarantors is rising and personal guarantees seem to be increasingly less attractive 5, especially if given by private persons 6. Definitely the legal professions in most jurisdictions are highly occupied with judicial problems of personal guarantees, if one looks at the numbers of court decisions 7 or at the comprehensive academic literature on this matter Legislation As in other fields of the law of obligations there are three legal sectors where personal guarantees could be governed by statutory provisions: The main and central area is that of the general private law applying to all citizens, so that in most civil law countries at least the suretyship as the traditional form of a dependent personal guarantee is regulated within the Civil Code, as in Germany ( 765 ff BGB), Austria ( 1348 ff ABGB), Switzerland (Art 492 ff OR), Greece (Art 847 ff AK), Turkey (Art 581 ff BK), Croatia (Art 104 ff COA), Poland ( 876 ff KC), Estonia (Art 142 ff LOA), France (Art 2288 ff CdeCiv), Italy (Art 1936 ff CceCiv), Portugal (Art 627 ff CgoCiv), Argentina (Art 1986 ff CgoCiv), Brazil (Art 822 CgoCiv), Quebec (Art 2333 ff QuCivCod), USA ( guarantees,sometimes without differentiation independent guaranties) 9 Israel ( guarantee 10, EU Art IV.G.-1:101 ff, IV.G.-2:101 DCFR. The legal situation in Denmark is different, because the private law of the Nordic countries is based mainly on case law following non-statutory general principles, added recently by a few scattered statutory rules 11, but even Danish law knows a dependent guarantee like a surety (kaution) Danish Report, 4. 4 German Report, 2. 5 German Report, 3. 6 Croatian Report, 2, 3. 7 E.g. Estonian Report, 1; in contrast only few cases on consumer guarantees, Argentine Report, 1. 8 Austrian Report, 2. 9 USA Report, Israeli Report, Danish Report, Danish Report, 2.

3 3 In contrast the abstract guarantee as the prototype of an independent personal guarantee is in most of these jurisdictions not covered by specific rules 13, but based on an innominate contract designed by the parties within the scope of freedom of contract, e.g. in Denmark (garanti) 14, however not in Canada 15, only sometimes related to certain contract types like remittance (Poland, 921 ff KC) or third party undertaking (Turkey, Art 110 ff BK). Rarely there are particular regulations concerning abstract guarantees, like in France (only a definition in Art 2321 CdeCiv) 16, in Estonia (Art 155 LOA), in Croatia for bank guarantees (Art 1039 ff COA), EU Art IV.G.-3:101 ff DCFR.The co-debt for security purposes is mainly assigned to the general rules relating to co-debtorship, as in Germany ( 421 ff BGB), Austria ( 1347 ABGB), Switzerland (Art 143 OR), Poland (Art 366 KC), Estonia (Art 118 LOA) or Quebec (solidary obligation, Art 1537 QuCvCod). In the EU pursuant to Art IV.G-1:102 sect 1 lit c DCFR the Part on personal security applies to co-debtorship for security purposes as well (see pursuant to Art IV.G.-1:104 DCFR: subsidiarity Art III.-4:101 ff DCFR on plurality of debtors [and Art III.-5:201 ff DCFR on substitution and addition of debtors]). Furthermore some countries have invented different guarantee mechanisms, based on other legal concepts, like the French letter of intent (Art 2322 CdeCiv), the Croatian debenture bonds (Art 214 ff CExecA) or the Polish aval for bills of exchange (Art 30 ff LBEPN) or the Brazilian promissory notes 17. Sometimes, mostly stemming from older traditions, additional provisions for commercial or business actors could be found (e.g. Argentina, Art 478 ff CgoComm), which normally lead to a stricter regime between professionals, e.g. setting aside the subsidiary liability of surety, like in Germany ( 349 HGB) not in Austria anymore since the enactment of the UGB in 2007, in Turkey (Art 7 TCommC), in Croatia (Art 111 COA), Portugal (Art 101 CgoComm), Argentina (Art 480 CgoComm), similar in Estonia, where the issuing of independent guarantees is restricted to business 13 E.g. Italian Report, 5 f, Portuguese Report, Danish Report, Canadian Report, French Report, 2, Brazilian Report, 2.

4 4 relationships (Art 155 LOA), or abandon formal requirements, like in Germany ( 350 HGB) not in Austria anymore since the enactment of the UGB in On the other hand the modern development towards consumer protection in some countries leads to specific provisions favouring the typically weaker contract party, some all private parties, like in Denmark 48 Financial Business Act for guarantees outside a commercial relationship, that is for all private guarantors, or all natural persons, like in France (Art L ) 18 and in Estonia (Art 143 LOA), including even commercial guarantees not issued by companies. Therefore certain information duties are foreseen, like in the Austrian Consumer Protection Act since 1997 ( 25a 25c KSchG) or in the Croatian Credit Institution Act from 2013 (Art 302, 305 CredInstA), in the EU Art IV.G.-4:103, IV.G.-4:106 DCFR, as well as an easement of the liability of the guarantor either by assuring the subsidiarity relating to the primary debt (Turkey, Art 4 VI TConsProtA of 2013) or by reducing or eliminating the liability by court in case of unfair disparity (Austria, 25d KSchG of 1997; EU Art IV.G.-4:105 DCFR; and form requirement pursuant to IV.G.-4:104 DCFR). 3. Aspects of substantive law 3.1 General a) Dependent and independent personal guarantees In most of the jurisdictions there exist two general types of personal guarantees: Firstly dependent guarantees with a strong accessory relation to the secured debt, and secondly independent guarantees without any connection to the primary obligation. The archetype of a dependent personal guarantee is the suretyship, which is always only valid, if the secured obligation is valid, and is only valid to the extent the main debt is valid. This requirement should enable the guarantor to predict the risk of his promise, therefore the accessoriness is usually strict and mandatory (Germany, 767 BGB, Austria 1351, 1363 s1 ABGB, Switzerland Artt 114, 499 II, 509 II OR, Greece Art 850, 851, 853, 864, Turkey Art 591 BK, Croatia Art 104 COA, Poland 879 KC, Portugal Art 627 n 1, 631 n 1 CgoCiv; Argentina Art 1993, 1995 CgoCiv, 18 French Report, 3.

5 5 Brazil Art 822 f CgoCiv, Quebec Art 2340 QuCivCod). Exceptions are only made if the secured debt is invalid because the debtor is lacking legal capacity, if the surety knows this (Greece, Art 850 AK) or even if he is unaware (Austria, 1352 ABGB, Croatia Art 107 COA). Independent or abstract guarantees, which the security provider has to fulfil even if there is no main obligation, are mostly not statutory regulated, but created by contract practice (in Canada a trend towards independent guarantees is not visible 19 ). They are in general non-accessory (USA: suretyship 20 ; indemnity, Israel 21 ), what is sometimes clarified in specific regulations (Croatia, Art 1039 II CredInstA; Estonia, Art 155 LOA 22 ). But because of the freedom of the parties to formulate the guarantee contract the abstraction can be reduced, e.g. by giving the guarantor after his payment a right to reverse his performance if the secured claim was invalid or unenforceable, thus creating a hybrid form of personal security like the German and Austrian Bürgschaft auf erstes Anfordern or only formal abstract guaranty 23, in the EU Art IV.G.-3:104 DCFR: Independent personal security on first demand. Likewise not fully independent are co-debtorships for security purposes, because their connection to the main debt is generally limited to the point the security is generated only at that time the secured obligation has to be valid, which could be called an initial accessoriness, afterwards both obligations can develop in different ways, if the parties do not agree otherwise 24. b) Subordinated or immediate liability of personal guarantors Again the traditional form of a dependent personal guarantee, the suretyship, is less burdensome for the security provider, because in most jurisdictions the surety is only liable after at least it has been tried to get performance from the main debtor. Hence the guarantee has merely a subsidiary function exceptions are Poland and Estonia 25, where there is no subsidiarity for sureties. By way of exception often 19 Canadian Report, USA Report, Israeli Report, Estonian Report, Austrian Report, Austrian Report, 5, Estonian Report, 12.

6 6 sureties are not subsidiary in cases of insolvency or of unknown residence of the main debtor, like in Austria ( 1356 ABGB) or Switzerland (Art 495 I OR), in the EU Art IV.G.-2:106 sect. 3 DCFR. But with reference to subsidiarity there are remarkable differences concerning the intensity to force the main debtor to fulfil his obligation: Some countries are asking simply for an out of court request to pay (Austria, 1355 ABGB) or a corresponding written notice (Croatia, Art 111 I COA; Israel, sect 8 Guarantee Act 26 ), while others demand to sue the main debtor (Germany, 771 BGB: Switzerland, Art 495 I OR), exhaust all remedies against him (Turkey, Art 585 BK; Denmark 27 ; similar in Quebec 28, guarantee of collection USA 29 ) or try to execute in vain (Greece, 855 AK; Argentina, Art 2013 CgoCiv). In contrast to the accessoriness the extent of subsidiarity assigned with sureties is not mandatory. Therefore the parties can remove the duty to take action against the main debtor, which is usually the case 30, by giving the creditor the right to demand payment immediately from the surety (Germany, 773 I Nr.1BGB, Austria 1357 ABGB, Switzerland Art 496 OR, Denmark selvskyldnerkaution, USA guarantee of payment 31 ), sometimes by stating a joint and several surety (Croatia Art 111 III COA, Turkey Art 586 BK; Argentina Art 2005 CgoCiv, Quebec 32 ). In the EU Art IV.G.-2:105 DCFR, in contrast, designates solidary liability of security provider unless otherwise agreed. On the other hand it can be agreed, that the requirements for subsidiarity are more strict than the statutory rules recommend, e.g. by prescribing an unsuccessful execution against the main debtor like it is foreseen in Austria ( 1356 ABGB), in Estonia (Art 145 I LOA) 33 or in Denmark only if there is a loss caused by the main debtor s non-performance 34, in Argentina for the deficiency after execution Israeli Report, Danish Report, Canadian Report, USA Report, Austrian Report 31 USA Report, Canadian Report, Estonian Report, Danish Report, Argentine Report, 29.

7 7 Independent guarantees usually have to be paid immediately, either on first demand or pay first, litigate later 36, so that they are non-subsidiary. But this can be altered by consensus of the parties, by which they agree on different ways to take action against the main debtor first. Co-debts are likewise mostly seen as nonsubsidiary (explicitly Switzerland, Art 143 OR; Greece, Art 477 AK). c) Form requirements for personal guarantees aa) Dependent personal securities Sureties mostly have to be made in writing, or more precise: the guarantor s declaration of intent has to meet the written form. The reason to insist on a qualified expression of will is a warning against the risks of the personal guarantee. Therefore in Germany the written form is prescribed since the enactment of the BGB in 1900 ( 766 s1 BGB), from where it was taken into the Austrian ABGB in ( 1346 II ABGB), and equally in Switzerland (Art 493 I 1hs OR), in Greece (Art 849 AK), in Turkey (Art 583 BK), in Croatia (Art 105 COA), in Poland 38 and in the USA 39. In Estonia the written form is necessary only for consumer guarantees (Art 144 II LOA), as in Israel 40 and in the EU Art IV.G.-4:104 DCFR (textual form on a durable medium and signed by the security provider), likewise in France (mainly for sureties of natural persons securing consumer loans, Art L CdeCons, and of natural persons for professional creditors, Art L CdeCons) 41, where there are generally no form requirements, like in Quebec 42, or in Argentina 43, unless there has to be evidence before the court (Argentina: Art 2006 CgoCiv). In Italy only an express declaration of the surety is valid (Art 1937) 44, the same rule has to be applied in Portugal (Art 628 n1 CgoCiv) 45 and Quebec (Art 2335 QuCivCod). 36 Greek Report 37 Austrian Report, Polish Report, USA Report, Israeli Report, French Report, 8 f. 42 Canadian Report, Argentine Report, 19; but the reform proposal to unify Civil and Commercial Code from 2011 recommends a contract in writing, Art 1579 Cgo-Prop, Argentine Report, Italian Report, Portuguese Report, 7.

8 8 Sometimes there are sectoral exceptions from these requirements, like in Germany for sureties given by merchants ( 350 HGB), in Austria after setting aside an identical provision since 2007 only for guarantees issued by banks in the course of their business ( 1 VI Austrian Banking Act). In most jurisdictions in writing means at least personally signed by the guarantor (Austria, 886 s1, s3 ABGB; Germany, 126 I alt1 BGB; Switzerland, Art 13 I, 14 I OR; Art 78 KC), but some require in addition the explicit declaration of responsibility by the guarantor, like Poland 46. Signed declarations sent via fax are only in some countries seen as sufficient, like recently decided in Austria (OGH ; left open in Swiss court decisions, but analogous application of Art 13 II OR is favoured by the majority of doctrine 48 ), mostly a fax is hold not adequate, like in Germany (BGH 1993, 1996). Electronic signatures are sometimes excluded, as in Germany ( 766 s2 BGB), but not in Switzerland (Art 14 IIbis OR), or valid only for certain categories of guarantors, like in Austria for those acting in the course of their business ( 4 I, II Z4 Austrian Electronic Signatures Act). Blank forms are usually not regarded as sufficient, e.g. in Austria 49 and Germany. It can be discussed if the written form is effective enough to warn the surety provider, especially because some jurisdictions are requiring more demanding formalities. For instance in Switzerland for the surety of natural persons exceeding 2000 CHF a public authentication is necessary (Art 493 II OR), in Croatia debenture bonds have to be issued in form of a notarial deed (Art 214 f CroExecA) and in addition have to be enlisted in a special registry (Art 216 CroExecA) 50. Another way to illustrate the default risk and let the guarantor think twice is the disclosure of the sum he is liable for in the surety contract, a necessary statement in Switzerland (Art 493 I alt2 OR) as well as in Turkey (Art 583 BK), or in Denmark for all private guarantees (Art 48 IV DkFinBusA), in France for natural persons securing entrepreneurial or professional risks without subsidiarity (ArtL CdeCons) 51, in Estonia only for consumer 46 Polish Report, Austrian Report, HandKomm-Kren Kostkiewicz, OR Art 13 N Austrian Report, Croatian Report, French Report, 11.

9 9 guarantees (Art 144 II LOA) 52, whereby in addition the risk is always limited to the stated maximum amount. bb) Independent securities While sureties are designated by a qualified, mostly written form stemming from their statutory regulation, independent contractual guarantees enjoy the fundamental freedom of form as any unregulated contract. Therefore in many countries abstract guarantees as contracts sui generis do not have to observe any formal standards, like in Germany (BGH 1962, 1967) or in Switzerland 53. More modern regulations are treating all kinds of personal guarantees equal, either by applying the traditional form requirements concerning sureties in an analogous way, like in Austria (OGH 2000) 54, or by extending them to all other guarantees, like in Turkey since 2012 if the guarantor is a natural person (Art 603 BK), in the EU for personal security of consumers, Art IV.G.-4:104 DCFR, in Denmark for all guarantees of private parties ( 48 DkFinBusA in writing), or even to certain kinds of guarantees, like in Croatia for bank guarantees (Art 1039 COA). In Quebec the Statute of Frauds requires the guarantee evidenced in writing 55. The same is true for co-debtorships, which either need no special form, again e.g. in Germany (BGH 1993, 1998) and in Switzerland, fall under an analogy to sureties, again e.g. in Austria (OGH 2010) 56 or may be in future in Croatia 57, or are treated alike sureties, again e.g. in Turkey (Art 603 BK), and in Quebec (express declaration, Art 1525 QuCivCod). d) Personal guarantees constituting mutual obligations Personal guarantees are mostly seen as bilateral in the sense that they are contracts based on declarations of will from both parties, e.g. in Germany, Austria 58, 52 Estonian Report, Swiss Report, Austran Report, Canadian Report, Austrian Report, Croatian Report, 14/ Austrian Report, 7.

10 10 Switzerland 59, France 60, prevailing opinion in Portugal 61, Canada/common law 62 only in Poland 63 and Crotia 64 bank guarantees are qualified as unilateral acts of the guarantor, in Italy any guarantee can be created by an unilateral act 65. In contrast related to the rights and duties personal guarantees are widely treated as unilateral because there are no mutual obligations created by those guarantees but only the guarantor has to effect performance, e.g. in Germany, Greece 66, Turkey 67, Poland 68, Denmark 69, France 70, Portugal 71. On the other hand in Austria guarantees are hold as containing mutual obligations in a wider sense stemming from the relationship between the main debtor and the creditor, which leads to an interpretation contra proferentem ( 915 s2 ABGB; similar in Canada 72 ), that means against the creditor if he has formulated the agreement 73. This argument assures in Canada/common law the necessary consideration, otherwise the guarantee have to be given under seal 74. In Croatia the same argument is used in the literature to avoid the application of Art 320 II COA, namely that the guarantee is interpreted to the less cumbersome burden in favour of the guarantor 75. In contrast in Denmark (following the minimum rule) 76 and Turkey guarantees are interpreted in favour of the debtor / guarantor, the same in Portugal, if there is no remuneration (Art 237 CgoCiv) 77, so in case of doubt the agreement is considered to be a less burdensome surety 78 or at least a dependent 59 Swiss Report, French Report, Portuguese Report, 5 f. 62 Canadian Report, Polish Report, Croatian Report, 13 the same for debenture bonds. 65 Italian Report, Greek Report, Turkish Report, Polish Report, bank guarantee 12, surety Danish Report, French Report, Portuguese Report, Canadian Report, Austrian Report, Canadian Report, Croatian Report, Danish Report, Portuguese Report, Turkish Report, 9.

11 11 guarantee with accessory to the main debt 79 ; similarly in the EU there is a presumption of a dependent guarantee pursuant to Art IV.G.-2:101 sect 1 DCFR. e) Possible extent of personal guarantees Most of the jurisdictions allow unlimited liability, like Germany or Greece (Art 848 AK) 80, Denmark (only within commercial relationships 81 ) even universal guarantees (not Croatia 82 ; in Denmark the soft law ban concerning consumer guarantees is executed by 36 Formation of Contract Act 83 ; similar in the EU Art IV.G.-4:105 lit a DCFR for consumer guarantees) if the amount is determinable (Austria, then no maximum amount necessary, OGH ; Portugal 85 ) or, like in Italy 86, the maximum amount is expressly agreed. In these countries future debts can be usually included (Argentina, Art , Brazil Art 821 CgoCiv 88 ), in the EU out of an argumentum e contrario from Art IV.G.-2:102 sect 3 DCFR, but sometimes not via standard terms (Austria, 864a, 879 III ABGB) 89 or only explicitly (Greece) 90. Some other jurisdictions generally only permit limited guarantees with a certain maximum amount, like Switzerland regarding sureties (Art 499 I OR) 91 and similarly Turkey. Accessories and costs of legal remedies are in some countries not covered by sureties, if this was not agreed by the parties, like in Austria 92, in Denmark 93 or in Greece (Art 852 AK, unless the guarantor was aware of the emergence of certain costs when the surety was issued) 94. In others the surety is generally liable for these costs, e.g. in France (Art 2293 CdeCiv), in Italy (Art 1942 II CceCiv), in Portugal (Art 79 Danish Report, Greek Report, Danish Report, Croatian Report, Danish Report, Austrian Report, Portuguese Report, Italian Report, 7, Argentine Report, 31 f. 88 Brazilian Report, Austrian Report, Greek Report, Swiss Report, Austrian Report, Danish Report, Greek Report, 15.

12 CgoCiv), in Argentina (Art 2038 CgoCiv), in Croatia (Art 109 COA), Estonia (Art 145 II LOA) 95, in the EU (Art IV.G.-2:104 DCFR), sometimes for damages or penalties only by agreement, e.g. in Switzerland (Art 499 II OR) or Turkey (Art 589 BK) as long as the maximum amount is not reached. 3.2 Consumer Protection The definition of a consumer is not even uniform within the Member States of the European Union, because still several directives in this matter are only minimum harmonising. So in some countries legal persons are excluded from consumer protection (which is the EU-standard), e.g. in Croatia (Art 5 CConsProtA) 96, in Italy (Art 3 V CceCons) 97, in the EU (Art I.-1:105 sect. 1 DCFR; see in particular Art IV.G.- 4:101 sect. 2 lett b DCFR), in others even legal persons can act as a consumer, like in Austria 98, in Greece 99, in Turkey (Art 3k TConsProtA) 100 or in Argentina 101. A very relevant problem for personal guarantees within firms is the question, under what conditions managers or shareholders of companies could be qualified as consumers, much debated for instance in Austria 102, rather refused in Greece 103, Estonia 104, Italy 105, Brazil 106. If the concept of protection is extended to natural persons, than managers and members of companies may be included, like in France 107. On the whole the scope of personal guarantees issued by consumers is very diverse in all jurisdictions. Likewise pre-contractual duties to inform the guarantor are very different, too, in Canada/common law there are no such duties 108. Some countries rely on the general 95 Estonian Report, Croatian Report, Italian Report, Austrian Report, Greek Report, 21 f. 100 Turkish Report, Argentine Report, Austrian Report, 20 f. 103 Greek Report, 26 f. 104 Estonian Report, 3 f. 105 Italian Report, Brazilian Report, French Report, Canadian Report, 26.

13 13 principles of culpa in contrahendo, like Germany, Switzerland 109 or Turkey 110, or Portugal 111, or on general consumer provisions (Italy, Art 2, 5 CceCons) 112, while others have intensely regulated this matter, e.g. Quebec for all guarantees (Art 2345 QuCivCod 113 ), Austria only for consumer guarantees with two separate information duties ( 25a, 25c KSchG) 114, in the EU similar in favour of consumers Art IV.G.- 4:103 DCFR, Greece not only for consumers via a public law regulation (Bank of Greece Governor s Act) 115 and similar Croatia with the Credit Institution Act (Art 302 V CCIA) 116, Denmark via 22 II Executive Order 117, France related to uninformed sureties 118, and Estonia for dependent guarantees of natural persons 119. Nearly the same holds true for duties to inform during the guarantee period, where again in Austria ( 25b KSchG), Greece and Croatia (Art 305 I CCIA) resp Denmark ( 48 DkFinBudA), France (both annual information and a risk warning in case of default of the debtor, e.g. Art L 341-6, CdeCons) and Estonia (Art 146 I LOA) specific provisions are in existence; in the EU extensive generally Art IV.G.-2:107, Art IV.G.-2:112, Art IV.G.-3:102 DCFR, for consumer guarantees in addition Art IV.G.- 4:106 DCFR. Specific limitations in terms of amount or duration of personal guarantees provided by consumers seem to be rare, but see in the EU in particular Art IV.G.-4:105 DCFR. In Denmark the guarantees of private parties lapse after 10 years in maximum ( 48 VI DkFinBusA) 120, in the EU Art IV.G.-2:109, Art IV.G.-3:107 sect. 2, Art IV.G.-4:107 DCFR. Loosely related may seem the new Turkish provision (Art 4 VI TConsProtA), that guarantees securing consumer transactions, not necessarily issued by consumers, have to be treated as ordinary suretyship, whereby accessoriness and subsidiarity is ensured. Even more strict in Estonia, where independent personal 109 Swiss Report, Turkish Report, Potuguese Report, 11 f. 112 Italian Report, 13 f. 113 Canadian Report, Austrian Report, 21 f. 115 Greek Report, 27 f. 116 Croatian Report, Danish Report, French Report, Estonian Report, Danish Report, 11.

14 14 guarantees without accessory and subsidiarity can be issued only within business or professional relations (Art 155 LOA); similar in France, where independent guarantees for consumer loans are forbidden (Art L CdeCons). There are mostly no specific provisions regulating personal guarantees visible in the areas of withdrawal from the guarantee (exception: France in cases of natural persons securing property loans granted to consumers, Art CdeCons 121 ) and of control of standard terms 122. Finally in few countries the problem of guarantees provided by family members of or closely related persons to the debtor is regulated, e.g. not in Italy 123. To request a written consent of the spouse of the guarantor, like in Switzerland (Art 494 OR) and similar in Turkey (Art 584 BK) and Brazil (Art 1647 III CgoCiv), or to inform the spouse about the consequences of a guarantee issued by the other partner, like in Austria ( 25a KSchG), does not solve the above mentioned problem, because that is not meant to protect the guarantor. There is some case law based on the violation of morality, e.g. in Germany, Austria 124, Greece 125 and Denmark (based on 36 DkFormContrA) 126, even in Canada/common law based on the doctrine of undue influence 127, it could be similar in Argentina 128. Recently in Austria 25d KSchG as a specific bonos mores provision directed at consumer guarantees is applied, similar in France Art CdeCons in cases of manifestly disproportion French Report, E.g. Estonian Report, 17, Danish Report, Italian Report, Austrian Report, Greek Report, Danish Report, Canadian Report, Argentine Report, French Report, 23.