Original scientific paper
Pre-Contractual Informing of Guarantors in Consumer Loans
Romana Matanovac Vučković
; Faculty of Law, University of Zagreb, Zagreb, Croatia
Abstract
Issuing guarantees for consumer loans in Croatia has very serious consequences for the guarantors, and this was confirmed in an empirical study conducted within the CitProtect Project, according to which a total of 27.6% of subjects-guarantors were not informed or do not remember being informed about their rights and obligations before executing the guarantee. Out of those guarantors that were informed, 11.9% did not understand, or poorly understood, or do not remember if they understood the information about their legal position and its consequences. These numbers show that necessary attention should be paid to the pre-contractual informing of consumers.
Croatian law does not expressly provide that a guarantor who issues a guarantee outside his or her commercial, business, trade, or professional activity for a consumer loan should also be considered a consumer. However, an analysis of the content of Croatian law compared to Austrian legislation and case law on this issue, as well as Rec. 12 of Directive 2014/17/EU on credit agreements for consumers relating to residential immovable property, indicates that within this context a guarantor should also be considered a consumer under Croatian law, to whom consumer law should consequently be applicable.
The pre-contractual duty to inform the guarantor within the consumer loan context is not regulated under European law. However, it is generally accepted that it is not prohibited to widen the personal scope of application of Directive 2008/48/EU on credit agreements for consumers and Directive 2014/17/EU on credit agreements for consumers relating to residential immovable property, which consider only principal debtors in consumer loan contracts as consumers.
Until 2013, Croatian law had no special rules on the duty to pre-contractually inform guarantors, so the primary mode of inferring its existence was through legal interpretation. The existence of the duty to pre-contractually inform the guarantor in consumer loan contracts was thus to be inferred from the general principle of good faith and fair dealing under the Obligations Act. Furthermore, the Consumer Protection Act also contains rules that enable such an inference about the existence of this duty on the creditor side of the transaction. However, in both these cases, and considering the absence of any relevant domestic case law, it could not be determined what exactly the content of such communication would be.
Considering the nature and effects of the rules on the pre-contractual duty to inform the consumer under the Consumer Credit Act and the Draft Residential Consumer Credit Act, which refer only to the principal debtors in consumer loan contracts, it cannot not be argued that the credit institution has a duty to provide to the guarantor the same information that it must provide to a potential borrower before executing the contract per analogy, particularly not that there is identical criminal and civil liability of the credit institution with respect to the guarantor as with respect to the principal debtor. Opinions to the contrary exist in German and Austrian literature, in the context of their domestic rules that implement European law. However, these comparative examples do not contain case law corroborating such views.
It is only the Credit Institutions Act that contains key provisions on the pre-contractual duty to inform guarantors. Under these provisions, the credit institution has a duty to disclose before the execution of a loan contract “all relevant information” about the terms of the contract that will make visible the rights and duties of the parties and advise them about the legal nature of a guarantee, as well as the right of the credit institution to collect their claims from guarantors. Nevertheless, with respect to guarantors the credit institution is not obligated to provide all the information it must provide the principal debtor. This Act does not contain a clear provision defining the meaning of “all relevant information about the terms of the contract that will make visible the rights and duties of the parties.” Therefore it should be understood that the credit institution has a duty to determine the content of the pre-contractual communication to the guarantor in good faith, as this Act determines the minimum rights of guarantors as consumers of , and credit institutions are in no way prohibited from broader communication with the guarantor about their rights and duties. On the other hand, it should be borne in mind that the right measure of informing is key for the consumer to be truly informed and make an informed decision about entering into the contract.
The research on legal regulation conducted here has demonstrated that consumer-guarantors are entirely free and unrestricted in entering into guarantee contracts, while at the same time there is no counter-balance in regulating detailed and sufficiently substantial information that the credit institution should provide before they enter into such contracts. Furthermore, the Credit Institutions Act that generally provides a duty to pre-contractually inform guarantors does not, however, envisage a duty to advise guarantors about entering into such contracts for consumer loans, and particularly about the consequences of such guarantees. Therefore, it would be useful to regulate in detail the duty to pre-contractually inform guarantors within special statutes, such as the Consumer Credit Act and the future Residential Consumer Credit Act, modeled after the current scheme for consumers-principal debtors.
Keywords
guarantee; guarantor; pre-contractual informing of guarantors; pre-contractual informing of debtors in consumer loans
Hrčak ID:
186933
URI
Publication date:
15.9.2017.
Visits: 1.928 *