On 29 March 2022, the Council of Ministers approved Decree-Law no. 3/2022, which establishes the Legal Framework for Commercial Contracts, one of the highlights being the Chapter on guarantees under the Commercial Contract.
This Decree-Law arises due to the need to revise and autonomise Book Three of the Commercial Code, approved by Decree-Law no. 2/2005, of 27 December, based on the most advanced guidelines on the matter, as well as the need to harmonise the provisions on obligations and contracts with other more progressive legal regimes that are more friendly to the market economy and development, which have occurred in recent years, the adaptation to modern trends in international trade, as well as the need to respond to the requirements dictated by integration into the regional and continental market.
Articles 477 to 633 of the Commercial Code, approved by Decree-Law 2/2005 of 27 December, have therefore been repealed.
1. Introduction to Commercial Guarantee Contracts
Contrary to the previous Book III of the Commercial Code, in which there was no mention of guarantees in commercial contracts, such that the regime and guarantees provided for in the Civil Code were adopted, this Decree introduces a clear and in-depth regime regarding guarantees, with Chapter VIII, specifically Articles 511 to 548, reserved for this purpose.
2. Commercial Guarantee Contract
According to Article 51, a commercial guarantee contract is a contract whereby one party, the guarantor, undertakes to another, the guaranteed party or creditor, to ensure the fulfilment of its own obligation or that of a third party, the debtor, whether present or future.
In Articles 512 to 515 is the list of guarantees with their own legal treatment in the Decree-Law:
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Dependent personal guarantee;
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Independent personal guarantee;
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Collateralised security; and
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General guarantee.
3. Dependent personal guarantee
According to the Decree-Law, a dependent personal guarantee is the one that is assumed by the guarantor in favour of the guaranteed party or creditor, with the purpose of ensuring a present or future obligation, either his own or that of the debtor, being enforceable when the guaranteed obligation is due.
4. Specific characteristics
The dependent personal guarantee has the following characteristics, as described in Articles 519 to 531 of the Decree-Law:
1. The enforceability of the guarantor's obligation is dependent on the enforceability of the guaranteed obligation;
2. The guarantor's obligation must not be greater in amount than the guaranteed obligation, except in the cases provided for by law;
3. The guarantor's obligation is limited to the value of the guaranteed right at the time the guarantee is finalised, if the amount of the guarantee has not been defined, or was not determinable;
4. The debtor and the guarantor are presumed to be jointly and severally liable for the fulfilment of the guaranteed obligation under the circumstances;
5. The creditor is required to notify the guarantor within a reasonable time of the debtor's default or insolvency, even if the maturity of the guaranteed obligation is extended, and the notice must include information on the amounts guaranteed, interest and other amounts resulting from the default or insolvency;
6. The guarantor is required to notify the debtor before he fulfils his obligations to the creditor, of the amount to be paid and of any exception he may raise.
5. Independent personal guarantee
Under Article 513, a personal guarantee is independent when it is assumed by the guarantor in favour of the guaranteed party or creditor for the purpose of securing a present or future obligation of his own or of the debtor, and is enforceable regardless of whether the guaranteed obligation is enforceable.
6. Specific features
The independent personal guarantee has the following features, as described in Articles 532 to 538 of the Decree-Law:
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The independence of the independent personal guarantee is not affected by its reference to a guaranteed obligation;
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The guarantor is only obliged to fulfil the guarantee if there is a prior request for fulfilment, made by the creditor, which must be in writing and contain a statement by the creditor expressly confirming that all the conditions for enforcing the guarantee have been met;
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The guarantor is not obliged to fulfil the guarantee if the request for fulfilment has been made in a clearly abusive or fraudulent manner and, unless otherwise stipulated, may object against the creditor;
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The creditor's right to fulfilment of obligations by the guarantor may be assigned or transferred to any third party;
7. Real guarantee
A real guarantee is one that is constituted over any type of property, movable or immovable, tangible or intangible, determined or determinable, which includes the pledge and mortgage.
The mortgage contract regime is governed by the provisions of the Civil Code. The Legal Framework of Commercial Contracts regulates commercial pledges.
6. General Guarantee
The general guarantee is a dependent personal guarantee which comprises the creditor's right to enforce all obligations contracted with the debtor.
The regime of the dependent personal guarantee applies to the general guarantee.
8. Entry into force
Decree-Law No 3/2022 in full force and effect.