The standard terms of the bank, where a man got a loan for the restoration of the matrimonial home (where he also had his architect's firm) he was the sole proprietor of, obliged the spouse to grant security for the loan. The architect's wife made no objections. At the time of the conclusion of the whole transaction, she was 32, mother of a young child, owed two already several times charged pieces of land and got only a low income as employee in the bureau of her husband. After several delays in payments on the loan, the bank terminated the loan and called upon the wife as guarantee as the man was not able to repay.
The editors of this journal made an interesting choice by taking the Vorlagebeschluss from the 29th June 1999 as case to be annotated. This not only because of the - at least - strange end of the affair, but mostly because of the style and form of the decision itself. The decision provides, like a real textbook, a complete overview of the different opinions concerning the Sittenwidrigkeit of contracts of suretyship of the IXth and the XIth Civil Chambers of the Bundesgerichtshof.
After discussing the German Law, it will be investigated how (vulnerable) sureties can try to avoid liability under French, Belgian, Dutch, English and Scottish Law.
The present standpoint in France upon this matter stems from the so-called Macron-case of the Court de Cassation of the 17th June 1997, which introduced the delictual libaility of banks that demanded "manifest disproportionate" sureties. Since then, French sureties are better protected than at the time when it was only possible to obtain annulment of the contract of suretyship for a defect of consent.
In Belgium sureties still have to take the hard way and proof a defect of consent in order to get relief of a null contract. It will be considered therefore if sureties cannot profit from the latest case law-evolution on the contractors' duties in the precontractual stage.European Review of Private Law