Private Law Research

legal - jurisprudence Thematic analysis of guarantees in commercial documents (subsidiary or independent?) and its effects on the holder's rights; Based on the theory of detail

Document Type : Research Paper

Authors

seyyed Mohammad Sadegh Tabatabaei 1
Mohammad Amini 2
mahmoud rastegari 3

1 Associate Professor of Law Department, University of Isfahan, Iran

2 PhD Candidate in private law, University of Isfahan, Iran.

3 M.A in Private Law, University of Isfahan, Iran.

https://doi.org/10.22054/jplr.2023.74824.2769
Abstract
If the guarantee contract is separated in a general division into the guarantee of transfer of Dhimmah and the guarantee as a tool to give credit to the obligee, the guarantee which is customary in commercial documents is the second part of the above division. The holder of the commercial document wants to introduce a guarantor while remaining the obligation and responsibility of the person who is the guarantor, in order to increase the strength and validity of the document and to raise his collective conscience in paying the amount of the commercial document. Therefore, the main question of the current research is that in the guarantee of commercial documents, is it engaged in the Dhimmah or responsibility? What effects will this detail have on the extent of the owner's rights? After researching and studying the works of jurists and jurists, and using a descriptive-analytical method, the authors came to the conclusion that in the guarantee of commercial documents, unlike the civil guarantee, the obligation to pay the amount of the document is placed on the guarantor, and such a view is also based on It increases the credibility of the commercial document and affects the rights of the holder.
According to the nature of the issue of guarantee in commercial documents, i.e. the substitution of responsibility for the Dhimmah, after the occurrence of the guarantee, the guarantor is independently responsible for paying the amount to the holder of the commercial document without his obligation being subordinate to the Dhimmah of the main debtor.
After the conclusion of the guarantee in the commercial document, if it is determined that the obligation of the main debtor was invalid during the issuance or transfer of the commercial document due to reasons such as forgery of the signature or lack of capacity, and for this reason, the debtor on the date of the document, because of the forgery his signature or lack of legal capacity, raises objections and refuses to pay, it must be said that regarding fake signature and lack of legal capacity, there is no discussion about the obligations of the holder; Rather, the discussion is about the commitment itself, because the commitment is the guarantor of an independent commitment. The subordination of guarantor's guarantee in commercial documents is not related to the principle of the obligation itself and it is related to the duties and legal conditions of the demand, which if the holder of the commercial document does not comply with the formalities of the demand for the document's payment within the specified period, he cannot, in terms of the commercial document, refer to the guarantor, but the fault of the holder has nothing to do with the independence of the guarantor's obligation in front of the principal debtor. In fact, in this research, guarantee is in a sense other than the concept of transfer and attachment. Because in the two concepts of transferring or attachment, the subject of the guarantee is the Dhimmah and a function of the debtor's Dhimmah, but in the guarantee of commercial documents, what is important is the independence of the guarantor's responsibility in dealing with the holder of the commercial document.
The limits of the guarantor's responsibility (which include: the guarantor's relationship with the debtor; the relationship of multiple guarantors with the debtor; the relationship between multiple guarantors; Condition of mortgaged property; Collapse of debt obligation; Invalidation of debtor's obligation; Death of guarantor in relation to holder), the scope of the obligations of the officials of the commercial document towards the guarantor, the scope of the law (Statute) governing commercial documents, and the scope of defenses that cannot be cited against the guarantor (which in part consists of (1) irrefutable objections related to the will, which include the objection of forging the debtor's signature; Debtor's lack of legal capacity; forgery in the document after the signature of the debtor and guarantor; The problem of signing the document by the debtor's representative lacks authority, and in another part, it consists of (2) objections that cannot be relied on other than the will, that is, the guarantor's substitution of the debtor, as well as compliance with the deadlines for protesting and filing a lawsuit) will be the influencing factors in this connection

Keywords

guarantee of commercial documents
civil guarantee
Dhimmah
responsibility
owner's rights
Subjects
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Private Law Research
Volume 12, Issue 44
Autumn 2023
Pages 49-95

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