umowa poręczenia; poręczenie; ustawa poręczenia; cesja wierzytelności; założenie zadłużenia; poręczenie za weksel
Problemy Prawa Prywatnego Międzynarodowego, T. 9 (2011), s. 23-34
Surety, one of the methods of securing a claim, is employed in international
trade, however it is regulated differently in various legal systems. Therefore, it is important
to establish the proper law for this legal relationship and the contract through which
it is created. In the Polish legal system this is done on the basis of the Regulation (EC)
No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law
applicable to contractual obligations (Rome I).
If a claim is secured by surety, one may distinguish three legal relationships,
namely: 1) between the creditor and the debtor, 2) between the creditor and the surety
3) between the debtor and the surety. The proper law must be found separately for each
of these relationships.
The proper law for the surety relationship between the creditor and the surety may
be chosen by the parties of the surety contract. In the case of a lack of such choice, the
law of the country of habitual residence of the surety will generally be the proper law.
This law is applicable to the interpretation of the surety contract, the performance of
obligations arising from that contract, the termination of these obligations, the effects
of partial or full fulfillment of the contract, prescription of claims, effects of contract invalidity.
The mentioned law also determines the types of claims that may be secured by
surety, the scope of the surety and its duration.
Outside the scope of the above mentioned proper law is the form of the surety contract
and the capacity to contract. The law applicable to the evaluation of the effects of a cession
of the claim secured by surety on the surety relationship must also be determined