In the national and international trade and finance , the subscribing of security documents in connection with commercial and banking agreements is usual practice.
In facts, the “first request” or “first demand” guarantee on one side, and the suretyship guarantee on the other side, are the two most frequent personal guarantees in the course of business.
Some recent rulings of the Italian Supreme Court of Cassation have clearly highlighted the characteristics of these two different types of consensual guarantees, both issued to protect the creditor in case of breaches of contract by the debtor.
Below you will find a brief insight about the main differences between these two guarantees in accordance with the most recent decisions of said Court.
2. “First request” guarantee and suretyship guarantee: main differences
- Ancillarity: the first difference between the “first demand” guarantee and the suretyship guarantee is that the first one lacks of “ancillarity” of the guarantor’s obligation with respect to the debtor’s contractual obligations; in fact, and above all, in the suretyship guarantee this fundamental element allows the guarantor to use the same exceptions and objections vested in the principal debtor, towards the creditor, which instead are precluded to the guarantor in case of release of a “first request guarantee”.
The latter might bar the creditor’s legal action by opposing the so-called “exceptio doli“, i.e. by highlighting the liability of the creditor who has fraudulently concealed supervenient facts which are able to modify or to extinguish the guarantee; in this regard, the Italian Supreme Court has clarified that the guarantor can’t just submit to the Court circumstances able to be exceptions that the debtor could raise against the creditor, but it is obliged both to specifically and formally oppose such circumstances against the creditor’s rights (Italian Civil Cassation, Section III, May 15, 2019, no.12884).
- Performance : another paramount difference between the “first request gurantee” and the suretyship guarantee is related to the performance due by the guarantor to the creditor . In fact, as recently clarified by the Italian Court of Cassation, in case of breaches of contract, when a suretyship guarantee occurs, the guarantor shall perform exactly the same obligations due by the contractual debtor, on the opposite, a first demand guarantor , shall fully indemnify the creditor by means of compensation of damages (Italian Civil Cassation Section III, Ordinance, March 5, 2020, n. 6177).
Such involves a very different function of the said two guarantees which, in the case of the suretyship guarantee, could be defined as “satisfactive”, because it allows the creditor to receive from the guarantor the fulfillment of the same obligation that the debtor should have performed , whilst, in the case of the first demand guarantee, may be defined as compensative” “, because the creditor receives, in any case the payment of an amount of money (Italian Civil Cassation, Section III, Ruling November 22, 2019, n. 30509; United Sections Italian Civil Cassation n. 3947/2010).
- Joint liability: the Italian Supreme Court has also clarified that the obligations of the principal debtor and of the first demand guarantor cannot be considered as joint and several, according to articles 1292 and subsequent of the Italian Civil Code, but between them only a contractual link can be inferred (Italian Civil Cassation, Section I, Ruling December 11, 2019, n. 32402).
- The “first request” clause: if in the guaratee agreement there’s a provision for payment on “first request and without exception” then it shall be considered as a first demand guarantee and not as a suretyship guarantee, unless the content of the contract itself provides clear elements in the opposite sense, such having been clarified by the United Sections of the Italian Supreme Court (United Section, Ruling no. 3947 of February 18, 2010); though, some recent decisions of the ordinary courts do confirm this pronouncement (Court of Forlì, Section II, Ruling January 7, 2021) whilist others times do not (Court of Turin, Section I, Ruling January 8, 2021).
In conclusion, there are many details to be examined in order to correctly qualify at law a guarantee document either as a “first request guaramtee” or as a “suretyship guarantee”, since the content of said contracts appears often to be equivalent and, therefore, easy to be confused; a correct classification is fundamental, since from that may depend the remedies, legal actions and exceptions available to creditors against guarantors for the protection of their rights and interests.
by Simona Tarantino
Landolfi & Associati banking&finance lawyers are available for further insights and release of information on the jurisprudential and regulatory changes described above and in relation to the application of the same to specific banking and financing agreements.