Requirements del guarantor for consumer
What are the requirements for the guarantor enjoys the protection granted to have the status of "consumer"?
The question is important because it is very common that parents endorse entrepreneurship of children. With the economic situation that we have been suffering, on numerous occasions financial institutions have ended up turning against avalistas.
The guarantor condition implies that consumer can benefit from the protective rules of consumers, especially in the case of the existence of unfair terms.
The Court of Justice of the European Union has clarified this concept by order of of 14 December 2016 (Case C-534/15).
The car interprets Articles 1 paragraph 1 and 2 letra b) Directive 93/13 / EEC of 5 April 1993, on unfair terms in consumer contracts.
Between 2005 and 2008, SRL Lanca the company held three loan agreements with Societe Generale (hereinafter SG).
The Mister. Dumitras (administrator and sole shareholder of Lanca SRL) y su esposa, They signed to guarantee the payment obligations, a document mortgage commitment SG.
In 2009, SG contracts are subject Lanca SRL subjective novation, becoming the debtor's commercial Lanca Constructii SRL.
In the new debtor company (Lanca Construction SRL), Mr. Dumitras nor his wife are not members or administrators. However, in the novation of 2009, They were forced as mortgage guarantors of the three loans Lanca Constructii SRL.
In December 2013 Messrs. Dumitras filed an appeal to the absolute nullity of certain clauses in loan agreements entered filed for 2009 because they were considered abusive.
SG alleged that Messrs. Dumitras not acting for purposes outside their business activity and so, they could not invoke their status as consumers.
The Romanian Court stayed the proceedings raising the question to be indicate whether the sureties of a credit agreement entered into with a commercial company to develop its activity should be considered or not consumers, when those individuals have no link professional nature with that company, but they were guarantors of three previous contracts (one of them being an administrator and partner only) which they were novated to a new society.
Para el TWENTY, They should take into account the circumstances of the last contract, it is between different people in front of the original contract. Therefore, quality in the intervening acting, It must be assessed with respect to the final warranty or guarantee (Auto part TWENTY the 15 November 2015 Case C-74/15).
The concept of consumer is objective in nature: It must assess whether the contractual relationship is part of a professional activity.This assessment is part of the national court.
In this case, in the novation of 2009, Messrs. Dumitras had no directorships, or they are participating in the Constructii SRL Lanca capital. Namely, They not are acting on the basis of functional links with Lanca Constructii SRL.
Ultimately, para el TWENTY:
Articles 1, paragraph 1, and 2, letra b), Directive 93/13 / EEC, of 5 April 1993, on unfair terms in consumer contracts, They must be interpreted as meaning that that directive applies to a contract of real estate collateral held between individuals and a credit institution to guarantee the obligations that a corporation has contractually undertaken against such entity under a credit agreement, when those individuals acting for purposes outside his professional activity and lack of functional links with that company, which corresponds determine the national court.
Namely, el guarantor guarantees the consumer will be considered if you dan these condiciones:
1.- Not acting in a professional activity.
2.- It is not an administrator or shareholder or partner of the borrowing company.
And this will lead you can claim against unfair terms.