- BGHZ 130, 19 X. Civil Senate
- 18 May 1995
- Professor Basil Markesinis
- Raymond Youngs
The claimant, a savings bank, granted continuous credit to the building company U-GmbH & Co KG (from now on called the principal debtor or KG). On the 18th January 1984, the defendant, which was a member of the KG with a limited liability share in the sum of 100,000 DM, accepted liability as guarantor on the basis of a form without limitation in time or amount and which was unconditionally enforceable [ie under which the person granting it cannot raise the objection that there has not yet been an unsuccessful execution against the principal debtor] for the credit granted to the KG. According to no 1 sentence 1 of the "Guarantee Conditions", the guarantee was taken up "for the securing of all existing and future demands by the savings bank against the principal debtor, including conditional or fixed term ones...from their business relationship (in particular from current account, credits and loans of every kind and bills of exchange) as well as from bills of exchange which are submitted by third parties, guarantees, transfers or statutory transmissions of debts". At the same time, the defendant committed itself not to charge currently held real property. The defendant latter breached this duty. Shortly afterwards, in October 1985, it left the KG in return for a pay-off in the sum of 150,000 DM. There is dispute as to whether this took place as a result of pressure from the claimant. In January 1986, the claimant raised the current account credit allowed to the principal debtor to 2.5 million DM. At the same time it granted two loans for 2 million and 1.5 million DM. By a letter of the 19th February 1990 which reached the claimant on the 22nd February 1990, the defendant terminated the guarantee. At this point in time, the principal debtor's bankruptcy was already imminent, and it occurred shortly afterwards. The claimant claimed against the defendant as guarantor for a sum of over 10 million DM. By the present claim it demands payment of a part sum of 1 million DM. The Landgericht and the Oberlandesgericht allowed the claim in principle. The defendant's appeal in law led to quashing and reference back.
A. The appeal court has stated that the guarantee contract was effectively created. (...)
B. These deliberations do not stand up to legal examination in certain important respects. The wide declaration of purpose is partially ineffective. It is therefore uncertain whether the guarantee was still securing demands when the defendant terminated it.
Admittedly the guarantee contract was - if one ignores the general conditions of contract problem - effectively concluded, and was not affected by the defendant leaving the company.
1. The declaration of the purpose of the security in no 1 sentence 1 of the "Guarantee Conditions" according to which a guarantee is taken up "for the securing of all existing and future demands, including conditional or fixed term ones, from their business relationship (in particular from current account, credits and loans of every kind, and bills of exchange)" satisfies the requirements as to certainty of content under § 765 of the BGB. (...)
2. The guarantee was not limited in time in such a way as only to apply for the length of the defendant's membership of the company and to be extinguished when it left the company. Nor was it limited to those demands by the claimant which had arisen up to the point when the defendant left. It says expressly in the contract that the defendant was providing a guarantee without limitation in time. In its regime there are no gaps to be closed by supplementary contractual interpretation for the case of the guarantor's membership of the company ending (...). This is because the defendant could - and the appeal court correctly refers to this - take its exit as a cause for terminating the guarantee by notice. Under Guarantee Condition no 5 a termination for the future was always possible, without this needing to be based on any grounds. The defendant has not taken this route, although it would have been reasonable for it to do so (...).
However, the declaration of the purpose of the security violates § 9 of the AGBG (General Conditions of Contract Act) [§ 307 of the BGB] and possibly § 3 of the AGBG [§ 305c (1) of the BGB].
1. The extension of the guarantee to all existing and future demands by the claimant in the preformulated declaration of purpose, which should be regarded as a general condition of contract (reference omitted), must be measured against the General Conditions of Contract Act. There is no individual agreement with priority which could remove the significance of the declaration of purpose (§ 4 of the AGBG [§ 305 (1) sentence 3 of the BGB]). (...)
2. A guarantee declaration in a form by which liability is widened to all existing and future obligations of the principal debtor arising from a banking business relationship can be surprising - with the result that it has not become a component of the contract (§ 3 of the AGBG [§ 305c (1) of the BGB]) - if the guarantee is taken up for the purpose of securing a current account credit. (...)
b) A regime in general conditions of contract has the character of surprise if it clearly deviates from the expectations of the contracting partner, who should not sensibly need to take it into account in the circumstances. The contracting partner's expectations here are determined by the general and the individual circumstances accompanying the conclusion of the contract (references omitted). The general accompanying circumstances include the degree of deviation from the dispositive statute law and the usual formulation for that area of business. The special accompanying circumstances include the course and content of the contractual negotiations as well as the outward character of the contract (references omitted). According to the view put forward by the senate so far, a clause in a bank's or savings bank's form-based contract is not surprising, if in it a guarantor secures all existing and future claims from the banking business relationship against the principal debtor, even though the cause for taking up the guarantee was only a particular claim by the credit institution against the principal debtor. (...) The senate had given as its reasoning that, according to § 765 (2) of the BGB, it was included in the rules of the statutory provision that a guarantee could also be taken up for future demands against the principal debtor of undetermined amounts. None of the provisions of §§ 765 ff of the BGB (and in particular not § 767 of the BGB) provide for the limitation of the guarantee to a determined maximum when it had been taken up from the outset for future claims arising from a determined business relationship. In the light of this statutory regime, and the goal pursued by it of unilaterally securing a creditor, the guarantor could not be protected, released or otherwise relieved simply because he had taken up the global guarantee in respect of the establishment or extension of a particular obligation of the principal debtor.
c) The senate does not adhere to this case law, which has partly met with agreement (references omitted) and partly with disapproval in the academic literature (references omitted). In contrast to its previous view, the senate deduces from § 767 (1) sentence 3 of the BGB a requirement for limitation of the guarantee. The provision states that a guarantee obligation is not widened by a legal transaction which the principal debtor enters into after the taking up of the guarantee. This regime should not only be applied when a limitation is actually agreed. The statute assumes it to be self-evident that, besides the certainty of the demands to be secured, there should for the guarantor's protection be a limitation of the guarantee by reference to a sum of money. In this manner, unilateral extension of the scope of the guarantee by the principal debtor and the creditor on their own authority is to be prevented. An unlimited extension of liability by the legal transactions of others contradicts the fundamental protection of the guarantor's private autonomy (references omitted). He will not generally expect such a deviation from dispositive statute law. As the relationship with the bank is a business relationship with an open content, the objective limitation of the guarantor's liability to demands from the banking business relationship does not suffice to protect the guarantor (references omitted). In so far as the guarantor's expectations are not determined by the statutory model but by the course and content of the contractual negotiations, the senate adheres to the case law of the fifth and eleventh civil senates of the Bundesgerichtshof. In the case of mortgages on land for security purposes for repayment loans, these senates consider the extension of the real (dinglich) liability to all existing and future obligations of the third party to be in principle "surprising" in so far as they go beyond the cause for the security contract (references omitted: "causal case law"). (...) the guarantor who enters into a guarantee because of a particular credit which is limited in amount should not [need] to take into account a clause in a form under which the guarantee extends to all existing and future demands from the banking relationship, without any limitation as to amount (references omitted). Admittedly the surprise presupposed in § 3 of the AGBG [§ 305c (1) of the BGB] cannot arise if the guarantor, when taking on the guarantee, does not actually think about the level of the debts for which he promises to assume responsibility. (...) It is different however if the guarantor when giving a guarantee declaration orientates himself to the granting of a particular credit, or to the extension of an existing credit by a certain sum, or to the prolongation of a particular credit, and it is permissible for him to do so. No substantial change is needed to this assessment if the credit which forms the actual cause for the guarantee is granted on current account. (...)
d) Widening the guarantor's liability to all existing and future obligations of a company by means of a form will not as a rule be "surprising" for a guarantor who as director, or sole or majority shareholder of the principal debtor can determine the type and level of its obligations. He does not need the protection of § 767 (1) sentence 3 of the BGB (...).
e) In the present case the surprise effect of the wide declaration of purpose cannot be assessed conclusively. (...)
3. This is because the extension of the guarantee to all demands - even future ones - under the banking relationship without limitation of amount is ineffective because it infringes § 9 of the AGBG [§ 307 (2) of the BGB]. (...)
b) The extension of the guarantee liability by means of a form beyond the demand which was the cause of the guarantee to all present and future obligations of the principal debtor is not reconcilable with the main statutory decision behind § 767 (1) sentence 3 of the BGB (see above 2c) (§ 9 (2) no 1 of the AGBG [§ 307 (2) no 1 of the BGB]). At the same time, it so limits important guarantor's rights which arise from the contract's nature that the attainment of the contract's purpose is endangered (§ 9 (2) no 2 of the AGBG [§ 307 (2) no 2 of the BGB]). On both grounds an unreasonable disadvantage to the guarantor must be assumed (references omitted).
aa) A wide declaration of purpose expects the guarantor to take on an incalculable risk. The guarantor has no influence over the creation and proper discharge of new debts. If he has to be responsible for them, his liability can suddenly amount to many times the amount he had reckoned for in the worst case. This could threaten him with ruin. He is supposed to be protected from such consequences by § 767 (1) sentence 3 of the BGB. He should not run the risk, without his agreement, of incurring an incalculable liability though the uncontrollable steps of third parties - the principal debtor and the creditor.
bb) Furthermore, if a private person takes on a guarantee, limited liability follows as a rule from the purpose of the contract. The prohibition contained in § 9 (2) no 2 of the AGBG [§ 307 (2) no 2 of the BGB] is supposed to prevent contractually important rights and duties being undermined by general conditions of contract (references omitted). The legal issues which are contractually important depend, in the case of contracts shaped by statute, on the statutory type of contract. The subjective horizon of the contracting parties' expectations takes second place to this. In the case of a guarantee, the prohibition of dispositions by other parties is contractually important because of § 767 (1) sentence 3 of the BGB.
c) Within the framework of § 9 of the AGBG [§ 307 of the BGB] the cause of the guarantee is to be understood primarily in an objective sense. This is different from § 3 of the AGBG [§ 305c (1) of the BGB] which is predominantly geared to the parties' subjective concepts of purpose (...). Even a guarantor who intends unthinkingly to be responsible for the principal debtor's "obligations" as a whole is unreasonably disadvantaged if it is required of him in a form to be jointly liable for other debts than those which were the objective cause of the guarantee. The objective cause is the current need of the creditor for security, but preserving the prohibition of dispositions by other parties. (...)
4. The fact that extension by the form of the guarantee liability to all demands arising from the banking relationship has not become part of the contract does not lead in the present case to its ineffectiveness. The declaration of purpose should instead be preserved in the form that the guarantee secures all existing and future demands, including conditional and fixed term ones, by the defendant against the principal debtor under the credit relationship as at the time of the giving of the guarantee declaration. The decisive factor is therefore in principle the credit limit at that time.
a) The legislator has in principle decided in § 6 (1) of the AGBG [§ 306 (1) of the BGB] that - in contrast to § 139 of the BGB - the legal consequences of the control of general conditions of contract are limited to the clauses or parts of clauses affected in each case. The whole clause, or even the whole contract, including the parts not directly affected by the control of general conditions of contract, would only exceptionally be ineffective if adhering to the regime - possibly supplemented under § 6 (2) of the AGBG [§ 306 (2) of the BGB - is unreasonable for a contracting partner (§ 6 (3) of the AGBG [§ 306 (3) of the BGB]). When there are objections to a clause or part of a clause in general conditions of contract, the preservation of the contract in other respects in principle assumes of course that the provision can be split into a permissible and an impermissible part. For this, division would need to be possible into components which would each be comprehensible in themselves and meaningfully separable from each other (references omitted).
b) The declaration of purpose here is divisible in its content and subject matter (see above 3a). Over against this, perfect linguistic separation is not possible. (...) Although a version of the clause which is free from objections can only be achieved by rewording rather than by leaving out individual sections, this does not amount to an impermissible reduction in order to maintain validity (...) The ban on reductions to maintain validity (...) is supposed to protect the contracting partner of the user from unfair clauses, and ensure that the content of general conditions of contract does justice to the interests on both sides. It would be inconsistent with this to permit the user, when he puts forward his conditions, to go beyond the boundary of what is permitted in an unscrupulous way, with nothing more to fear than that the court would move the detriment to his partner in the transaction back to a permissible level. It is not a question of that here. On the contrary, the rewording of the clause should facilitate the retention by the contract of a performance content: the very content which corresponds to the guarantor's conceptions when giving his guarantee declaration, so that his justified interests are taken fully into consideration. The total invalidity of the guarantee would - measured by the protective purpose of the General Conditions of Contract Act - be an excessive legal consequence (...). To separate linguistically (a) the taking up of the guarantee for the demand the securing of which was the cause for the guarantee from (b) the extension of the guarantee to all existing and future obligations of the principal debtor, it would have sufficed to divide the declaration of purpose accordingly into two sentences. In this case it was beyond question that the part of the declaration of purpose concerning the main obligation can exist after elimination of the other part, and the guarantee can remain effective as such. Therefore there is no prohibition existing for the guarantor's protection against producing the same result by the rewording of a unified clause (...)
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