A guarantee agreement is not a reciprocal agreement, but a unilateral agreement. Only the guarantor assumes a commitment: there is no counterpart from the creditor. This does not alter the fact that obligations may also arise for the creditor from the guarantee agreement, such as a duty of care to be observed towards the guarantor. If the creditor fails in such an obligation, the guarantor may be entitled to compensation. However, termination is not possible because the guarantee agreement is not a reciprocal agreement. This may be different if, in connection with the guarantee, the creditor has also entered into obligations that are so closely related to the guarantor’s obligation that there is a legal relationship that serves the mutual performance of services. In that case, the provisions regarding reciprocal agreements, including art. 6: 265 BW, similarly applicable.
Joyce was a top holding company in the Soto Group. Joyce had concluded a current account credit with the predecessor of ABN AMRO (Fortis Bank), with a limit of € 3,000,000 and with a final date of 1 November 2010. This credit had to be secured: Spring BV would have a guarantee for this provide. ABN AMRO (‘the Bank’) agreed with Spring that the bank financing runs until 1 November 2010 and that the bail would be returned if the bank financing was settled. It was also agreed that if the Bank were to invoke the bail, Spring could enter into the rights of the Bank of a lien on the shares of a certain other company in the Group. The Bank and Spring have entered into the guarantee agreement.
Joyce has failed to fulfill its obligations under the credit agreement and has not repaid the credit on 1 November 2010. In November 2011, the Bank warned Joyce that the credit limit had been exceeded and the overdraft had to be reduced. In January 2012, the Bank announced to both main debtor Joyce and to guarantor Spring that it wished to surrender the securities and guarantees. In the course of 2012, the Bank was involved in the restructuring of the Soto Group. It has not come to a definitive solution, and several companies within the group have failed. The Bank has ordered Spring to pay on the basis of the bail. Spring did not proceed to payment.
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In cassation, Spring complains that the Court of Appeal only decided on the subsidiary claim for compensation, but wrongly did not decide on the claim for termination. The Supreme Court ruled, in line with Gregoire’ conclusion, that this complaint cannot lead to cassation due to lack of interest. Dissolution on the basis of art. 6: 265 BW of a guarantee agreement is not possible because it is not a reciprocal agreement.
The bail is, according to its description in art. 7: 850 paragraph 1 Dutch Civil Code by its nature a unilateral (and therefore not a reciprocal) agreement. Only the guarantor takes on a commitment. This is not offset by a commitment from the other party with an ‘exchange character’, such as art. 6: 261 of the Dutch Civil Code. In principle, this does not alter the fact that obligations may also arise for the creditor from the guarantee agreement. As an example of such an obligation, the Supreme Court cites the creditor’s obligation to refrain from conduct that detracts, at the expense of the guarantor, from the rights in which he may expect to be subrogated (Article 6: 154 of the Dutch Civil Code), or more generally, a duty of care to be observed with regard to the guarantor. If the creditor fails to comply with such an obligation, the guarantor cannot derive the authority to dissolve the guarantee agreement from it. He may, however, be entitled to compensation for the damage he suffers as a result of the debtor’s breach of the obligation.
In this case, there is no shortcoming on the part of the Bank in the fulfillment of an obligation that is in an ‘exchange ratio’ to Spring’s commitment. Therefore, the fact that the Bank has breached its obligation to inform Spring of its intention not to hold Joyce liable for pending the restructuring, does not give Spring the right to terminate the guarantee agreement.
Procedure: Spring claims dissolution or compensation in the counterclaim
In this case of Spring, the Bank claims payment of € 3,000,000 with interest under the bail agreement. Spring has claimed in a counterclaim that the guarantee agreement will be terminated on the grounds of a shortcoming on the part of the Bank. In the alternative, Spring claims compensation for the damage it has suffered. According to Spring, the shortcoming of the Bank is that it has not fulfilled its due diligence and best efforts obligations. The Bank has misunderstood Spring’s importance in prompt information by not contacting Spring until January 2012. As a result, Spring could not invoke the security stipulated for its guarantee (the lien on the shares of a certain company in the Group) at a time when they still had some value.
The Court of Appeal is of the opinion that, in view of the due care to be given to Spring as a guarantor, the Bank could be expected to inform Spring that it would not yet be using Joyce for its failure to await financial restructuring of the Group. The Court of Appeal admitted Spring to the evidence of facts showing that Spring would have limited the consequences of its liability as a guarantor if it had been informed by the Bank about the deferment of the credit settlement. The Court of Appeal ruled in its final judgment that Spring did not succeed in that evidence. The court of appeal, therefore, confirms the judgment of the court and Spring must pay the Bank € 3,000,000 with interest.
Possibly dissolution of bail in close connection with other obligations
The Supreme Court does not exclude the possibility that (partial) dissolution of a guarantee agreement is possible under certain circumstances. It is possible that in connection with the guarantee, the creditor has (also) entered into obligations that are so closely related to the guarantor’s commitment that there is a legal relationship that involves mutual performance within the meaning of art. 6: 261, paragraph 2 of the Dutch Civil Code. (The Supreme Court refers in that regard to HR 29 April 2011, ECLI: NL: HR: 2011: BP4340, ground of appeal 3.15.) Pursuant to the second paragraph of that article, the provisions regarding reciprocal agreements (such as the right to dissolution) are of Article 6: 265 of the Dutch Civil Code) applies mutatis mutandis to other legal relationships that serve to mutually perform, insofar as the nature of those legal relationships does not preclude this. Such a legal relationship can in principle be wholly or partially dissolved. In that case, a deposit can be released in the event of a default on the part of the creditor by dissolving the obligation on him.
In the present case, according to the Supreme Court, there are no clues to assume the existence of such a legal relationship, and no complaints have been made about this in cassation.
The above does not permit any other conclusion than that Spring’s claim for termination of the guarantee agreement cannot be granted. It, therefore, has no interest in finding the cassation complaint well-founded. The Supreme Court rejects the appeal.