Fideiussione e contratto autonomo di garanzia: tertium non datur

Translated title of the contribution: [Autom. eng. transl.] Guaranty and autonomous guarantee contract: tertium non datur

Research output: Contribution to journalArticlepeer-review

Abstract

[Autom. eng. transl.] The United Sections face the age-old problem of the nature of the guarantee policy on procurement, stating that this guarantee, by virtue of its indemnity function, takes on the characteristics of the atypical guarantee, departing from those of the guarantee stricto sensu, to land, in its exodus, up to the qualification of an autonomous guarantee contract in the event that, in the contractual text, the clauses are affixed at first request and without exceptions or a content such as to express a similar will. The solution offered by the United Sections appears to be absolutely new and broken with respect to the previous jurisprudential address, which, while acknowledging the atypical nature of the institution in question, tended to bring it back to the guarantee scheme, making a subtle distinction between the peculiarities of a shop and the contractual scheme, which can be said to be waived only when the cardinal rules of it are incompatible with the dictation applied by the parties. The innovativeness of the pronunciation appears in all its disruption as it follows a minority trend, which in the jurisprudence of the same Court found precedents in a very small number of pronunciations. The legal code in the matter of surety is not applicable in the case in question, resulting in the derogation from the will of the parties: therefore, not even art. 1957 of the Italian Civil Code since the events relating to the basic relationship cannot be opposed by the guarantor towards the creditor-beneficiary.
Translated title of the contribution[Autom. eng. transl.] Guaranty and autonomous guarantee contract: tertium non datur
Original languageItalian
Pages (from-to)98-102
Number of pages5
JournalOBBLIGAZIONI E CONTRATTI
Publication statusPublished - 2011

Keywords

  • contratto autonomo di garanzia
  • polizza fideiussoria

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