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The Approval of the Spouse
Article 584 provides for a restriction which concerns a married
person. A married person may validly stand as surety only with the
written consent of his spouse unless the spouses are separated by court
judgment.
The approval of the spouse shall be received in advance or at the
latest when the contract of surety is concluded.
The approval of the spouse is not required if the subsequent
amendments do not increase the total liability, transform a simple sure-
ty into a joint surety or substantially diminish the level of the surety’s
security.
Conclusion
Under article 581 et seq. of the TCO which has entered into force
on 01.07.2012, the contract of surety is defined as
“a contract where
the surety undertakes to be personally liable towards the creditor in
case the debtor fails to fulfill his obligations”
and it is regulated that
the validity of the contract of surety is subject to some conditions.
These conditions are:
(i) there shall be a valid primary obligation,
(ii) it shall be made in written form and
(iii) approval of the spouse shall be received.
The existence of primary obligation is not required at the time
when the contract of surety is concluded; however primary obligation
shall exist at the time when the creditor demands the performance of
the contract of surety.
Furthermore, the primary obligation shall be valid. However, if the
person standing surety for performance of an obligation arising from a
contract that is not binding upon the debtor as a result of error or inca-
pacity to conclude a contract is liable for such obligation if he was
aware of the defect vitiating the contract at the time he gave his com-
mitment. The same applies to any person who stands surety for perfor-
mance of an obligation that is time-barred for the debtor.
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NEWSLETTER 2012