One of the most frequently used forms of collateral is the surety. This is
how determines an agreement in which a guarantor makes a commitment before
a creditor to perform an obligation if the obligor fails to fulfil it. An
often used element of such contract is a limitation of the “validity” of
the guarantor’s liability. The above provision is particularly important in
the case of a surety for a debt that does not yet exist at the time of the
agreement conclusion. According to art. 878 § 2 Civil Code an indefinite
surety for the future debt may be revoked at any time before the occurrence
of debt.
The expiry of the term specified in the surety agreement should result in
the cessation of guarantor’s liability, whose obligation in such case
expires. The question arises whether this effect will also occur if, before
expiry of the suretyship, the creditor will submit a claim against the
guarantor for the payment of the already existing debt.
On the one hand, giving a judgment the court is required, in principle, to
take account of the state of affairs at the time the hearing is closed. For
this reason, it should be concluded that when the period of the surety has
expired during the court proceedings, the guarantor’s liability has expired
and there is no basis for claim submission against him. On the other hand,
the expiry of guarantor’s liability despite claim submission against him,
could lead to situations that are difficult to accept, especially if the
guarantor in order to release his liability deliberately delays the
satisfaction of the creditor. It is also unacceptable to assume that the
creditor is to bear the negative consequences of the length of the court
proceedings, which does not depend from him.
The above mentioned legal problem has been resolved in the resolution of
22.06.2016 (III CZP 19/16), in which the Supreme Court stated that “the
expiry of the period of the surety does not preclude the obligation of the
guarantor to satisfy the claim the creditor pursues before the court if
proceedings has been brought before the expiry of that period”. In the
opinion of the Supreme Court, the claim submission for payment against the
guarantor before the expiry of the period during which a contract binds the
parties results in interruption of the period of the surety. To the above
period, by analogy, would be applicable art. 123 § 1 point 1 Civil Code,
according to which the limitation period is interrupted by any action
before a court or other authority called upon to hear or prosecute claims
of this kind or before an arbitral tribunal, taken directly to pursue or
determine or satisfy or secure a claim. According to the Supreme Court, the
application of the above provision to this situation will cause that if the
creditor submit a claim against the guarantor before the expiry of the
period of the surety, the claim will not expire despite the expiry of the
period of the surety and the guarantor will still be obliged to satisfy the
creditor.
Author: legal counsel Paweł Helta
