учебный год 2023 / Drobnig, Principles of European Law of Personal Security

Chapter 1: Common Rules

para 2); ITALIAN CC art. 1947 para 2; Giusti 216; PORTUGUESE CC art. 649 para 2 (see supra no. 8); SPANISH CC art. 1844 sent. 1).

14.The new DUTCH Civil Code does not provide a beneficium divisionis anymore, as it appeared that in practice contracting parties mostly had excluded it. Parties are free, though, to expressly agree on the beneficium (Blomkwist no. 41 at p. 67-68).

II. Application to Co-Debtors for Security Purposes

15.The principles set out above for the case of plurality of providers of security are equally applicable to cases of co-debtorship for security purposes and situations where there is a co-debtor for security purposes besides a security provider. In ENGLISH law, this result follows from the fact that a co-debtor who agrees with the other (principal) debtor to act

as surety only is treated as a normal security provider (cf. national notes to Art. 1:106 no. 11). Under GERMAN law co-debtors, like providers of personal security, may agree with the creditor upon the type and details of their liability (cf. Reinicke and Tiedtke, Kreditsicherung 15). In the absence of any agreement several co-debtors are solidarily liable (Erman/Ehmann § 421 no. 47). See generally as to the type of the security provider’s liability under a co-debtorship for security purposes in the different member states notes to Art. 1:106 nos. 22 ss.

III. Personal and Proprietary Security

A.Solidary Liability

16.In ENGLAND often, even though not always, a person granting proprietary security for another person’s debt in the same document also assumes a personal security (Lingard 154). Regardless of whether a security provider grants a proprietary security or assumes a personal security, it is regarded as a surety (Halsbury/Salter para 105; Andrews and Millett no. 1-001). Therefore providers of personal and proprietary security may be solidarily liable. The same is true for FINLAND (LDepGuar § 41 refers for third party proprietary providers of security, inter alia, to § 3 para 3, cf. supra sub no. 10 ss.). Similarly, in FRANCE and BELGIUM a third party granting proprietary security is known as «caution re´elle/zakelijke borg» (FRANCE: Cass.com. 7 March 2006, Bull.civ. 2006 IV no. 59 p. 59; Cass.ch.mixte 2 Dec. 2005, Bull.civ. 2005 ch.mixte no. 7 p. 17, JCP G 2005 II no. 10183; the Grimaldi Commission’s proposed CC art. 2295 («Le cautionnement re´el est une suˆrete´ re´elle constitue´e pour garantir la dette d’autrui») has not, however, been adopted by the legislation of 2006; Simler no. 20; BELGIUM: T’Kint no. 718). Such security is regarded as proprietary security in relation to the creditor (FRANCE: Cass.com. 7 March 2006, supra, confirming Cass.ch.mixte 2 Dec. 2005, also supra; it is possible, however, that the provider of a proprietary security in addition also assumes a personal security: Cass.com. 21 March 2006, Bull.civ. 2006 IV no. 72 p. 71). The exercise of the beneficium divisionis is excluded (BELGIUM: Van Quickenborne no. 70; FRANCE: Simler nos. 22 and 510). Therefore providers of personal and of proprietary security are solidarily liable.

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B.Quasi Solidarity

17.In GERMAN and SPANISH law the liability of providers of personal and proprietary security is technically not regarded as solidary because of the different content of the obligations or claims. However, the same results are achieved since the courts regard all providers of security as quasi solidarily liable (GERMANY: BGH 29 June 1989, BGHZ 108, 179, 183 and 187, confirming BGH 14 July 1988, BGHZ 105, 154, 158; BGH 24 Sept. 1992, NJW 1992, 3228; implicitly approving e.g. Palandt/Heinrichs § 426 no. 2; different view Erman/Ehmann § 421 nos. 40 s.; SPAIN: Dı´ez-Picazo 445).

IV. Ranking of the Creditor’s Claims against Different Providers of Security

A.Creditor’s Free Choice

18.In most countries the creditor generally has the choice from which of the several pro-

viders of personal and proprietary security it will demand performance or payment (AUSTRIA: OGH 20 June 1984, SZ 57 no. 114 565-566; Schwimann/Mader and Faber

§ 1360 no. 1; BELGIUM: Dirix and De Corte no. 27; DENMARK: Rørdam and Carstensen 40 s.; Højrup 52; Ussing, Kaution 87; ENGLAND: Re Bank of Credit and Commerce International S.A. [1998] AC 214, 222 (HL); Jackson v. Digby (1854) 2 WR 540 (HL);

FRANCE: the creditor is not obliged to first call upon the «caution re´elle», Cass.com. 10 Nov. 1981, D. 1982, 417; Simler no. 510; GERMANY: BGH 29 April 1997, WM 1997, 1247, 1249; Reinicke and Tiedtke, Kreditsicherung 395; ITALY: the principle of free choice of the creditor is clearly expressed only in relation to several providers of personal security: Ravazzoni 263; Giusti 212; NETHERLANDS: while the principle of free choice is often made subject to the demands of good faith, this has not yet been utilised to negate a creditor’s choice, H.R. 24 April 1992, NJ 1992 no. 463 with note Snijders, H., NTBR 1993, 163, 166; CA Hertogenbosch 3 Oct. 1994, NJ 1995 no. 357; SCOTLAND: Ewart v. Latta (1865) 37 Sc Jur 418 = 1865 SC 36 (HL (Sc))).

B.Restrictions

19.Legal ranking may, however, result from the rules on the subsidiary liability of providers of dependent personal security. Yet these rules are subject to several exceptions so that in practice even the provider of a dependent security with subsidiary liability will very often not be entitled to demand from the creditor the prior enforcement of other securities (for details see national notes to Art. 2:106 nos. 13 ss.).

20.In SWEDEN, if the third party’s liability under its security is subsidiary, the creditor must in dubio first enforce against the debtor’s proprietary security (Walin, Borgen 150). The legal situation is more uncertain if a third person has granted a proprietary security and another security provider a subsidiary personal security. Walin seems to prefer that a proprietary security pledged by a third party is fully liable towards providers of personal security, although he also expresses the contrary opinion (317-320). There is no relevant Supreme Court decision (as to the principles, cf. HD 10 Nov. 1981, NJA 1981, 1104). There are, however, cases where a proprietary security provider is treated less favourably than a provider of personal security. E.g. in HD 18 Feb. 1987, NJA 1987, 80 primary liability was assumed although a personal security provider in dubio is liable only sub-

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sidiarily. Many other SCANDINAVIAN authors think that providers of personal and proprietary security in principle shall be treated equally (cf. Walin, Borgen 317 fn. 15).

21.In FINLAND a free choice exists in case of a solidary personal security and proprietary security granted by the debtor if the parties have agreed on a so-called “supplementary security” (LDepGuar § 2 no. 4). There is such a security if the main purpose of the secured credit is the acquisition or repair of a house or vacation place and this serves as security for the credit (§ 3 para 2). Besides, the parties are free to agree against which of the several providers of security the creditor should turn first.

22.In GREECE, ITALY and SPAIN there is no straightforward rule regarding the relationship between personal and proprietary security (see for ITALY also supra no. 18). In GREECE, the creditor in general has the right to choose the security which it deems more suitable for its satisfaction; this right is not without limits and subject to the socalled duty of vigilance, especially if the creditor is a bank (cf. Doublis, Metavivasi pistosis 122-123). By contrast, in PORTUGAL the relationship between personal and proprietary security is regulated by CC art. 639, though the parties may agree otherwise. The provider of dependent personal security with beneficium discussionis (i.e. with subsidiary liability; see infra national notes on Art. 2:106 no. 9) may demand from the creditor first to seek satisfaction from a provider of proprietary security securing the same debt and created prior to or contemporaneously with the dependent personal security. However, if the proprietary security also secures other claims of the same creditor, this rule only applies if the value of the proprietary security is sufficient to satisfy all claims. Literally, CC art. 639 only refers to proprietary securities on a contractual basis, but it may be applied to proprietary securities created by operation of law as well (Almeida Costa 776).

23.In ENGLAND, the free choice of the creditor from whom to demand performance can in appropriate situations be affected by the equitable doctrine of marshalling. This equitable right serves to ensure that one creditor does not deprive another creditor of his due portion of the debtor’s estate. When e.g. the creditor demands performance from the provider of personal security, the latter may compel the creditor, if the latter has a claim upon two funds in respect of the secured debt, of only one of which the provider of personal security can avail himself, to resort to the other first (cf. Halsbury/Salter para 226; see generally Ali, passim).

(Bisping/Bo¨ger)

Article 1:108: Several Security Providers: Internal Recourse

(1)In the cases covered by Article 1:107 recourse between several providers of personal security or between providers of personal security and of proprietary security (Article 1:101 lit. (h)) is governed by PECL Article 10:106, subject to the following paragraphs.

(2)Subject to paragraph (3), the proportionate share of each security provider for the purposes of PECL Article 10:106 is determined according to the following rules:

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Article 1:108: Several Security Providers: Internal Recourse

(a)Unless the security providers have otherwise agreed, as between themselves each security provider is liable in the same proportion that the maximum risk assumed by that security provider bore to the total of the maximum risks assumed by all the security providers. The relevant time is that of the creation of the last security.

(b)For personal security, the maximum risk is determined by the agreed maximum amount of the security. In the absence of an agreed maximum amount, the amount of the secured obligation or, if a current account has been secured, the credit limit is decisive. If the secured obligation is not limited, its final balance is decisive.

(c)For proprietary security, the maximum risk is determined by the agreed maximum amount of the security. In the absence of an agreed maximum amount, the value of the asset(s) serving as security is decisive.

(d)If the maximum amount in the case of lit. (b) first sentence or the maximum amount or the value, respectively, in the case of lit. (c) is higher than the amount of the secured obligation at the time of creation of the last security, the latter determines the maximum risk.

(e)In the case of an unlimited personal security securing an unlimited credit (lit. (b) last sentence) the maximum risk of other limited personal or proprietary security rights which exceed the final balance of the secured credit is limited to the latter.

(3)The preceding rules do not apply to proprietary security provided by the debtor and to security providers who, at the time when the creditor was satisfied, were not liable towards the latter.

Comments*

A. Recourse between Several
Security Providers . . . . . . . . . . . . . .	no. 1
B. Shares of Security Providers
(para (2) lit. (a)) . . . . . . . . . . . . . . . .	nos. 2-4
C. Definition of the Maximum Risk
for Personal Security (para (2)
lit. (b)) . . . . . . . . . . . . . . . . . . . . . . . . . . .	no. 5

D.Definition of the Maximum Risk for Proprietary Security (para (2)

lit. (c)) . . . . . . . . . . . . . . . . . . . . . . . . . . .

no. 7

E. Limitation of the Maximum Risk

(para (2) lit. (d)) . . . . . . . . . . . . . . . . nos. 8, 9

F. Special Limitation (para (2)

lit. (e)) . . . . . . . . . . . . . . . . . . . . . . . . . . . nos. 10, 11

G. Exceptions . . . . . . . . . . . . . . . . . . . . . . .

nos. 12, 13

A.Recourse between Several Security Providers

1. General. Article 1:107 (1) establishes solidary liability of several personal security providers vis- -vis the creditor. The general rules on recourse between several solidary debtors are well adapted to being applied between several security providers since all security providers are in the same boat. A creditor’s decision to demand performance from one security provider rather than another or all is motivated by its interests.

*The Comments on Article 1:108 are by Frank Seidel.

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B.Shares of Security Providers (para (2) lit. (a))

2. Shares proportionate to maximum risk. Neither PECL Article 10:106 nor other provisions of PECL Chapter 10 determine the size of the individual shares of solidary debtors. Article 10:105 (1) merely presumes that solidary debtors are liable for equal shares, while according to para (2) several persons that have contributed to the same damage are liable inter se, as a rule, according to the share with which each contributed to the damage (cf. PECL Article 10:105 Illustration 4). While the latter provision obviously is inapplicable, the rule of para (1) obviously is a rule of thumb which, at least for recourse among security providers is inequitable since those assume often risks of very different extent. If for example A had assumed a personal security for 1.000 and B one for 300 for a credit being initially 1.300, but reduced by payments of the debtor to 500, it seems to be unfair to divide the remaining 500 between A and B equally, so that both would be internally liable for 250. Under Article 1:108 each security provider is internally liable in proportion to the maximum risk it had assumed.

Illustration 1

For a credit of 3.000 A had assumed a dependent personal security with a maximum amount of 1.000 and B one with a maximum amount of 2.000. The sum of all maximum risks being 3.000 (1.000 of A + 2.000 of B), A’s portion is 1/3 and B’s 2/3. If the debtor has paid 1.500, A would be internally liable for 500 (1/3 of 1.500) and B for 1.000 (2/3 of 1.500).

3.Agreements on another sharing. However, personal security providers may agree upon another sharing (cf. para (2) lit. (a) at the beginning). For instance, if shareholders of a company with very different holdings had assumed personal securities for a credit granted to their company, it must be possible for them to agree otherwise. But it may be a question of fact whether they wanted to share liability according to the size of their holdings in the company.

4.Time relevant for calculation of maximum risk. As several securities are not always created at the same time and as their value can differ, it is necessary to define the moment that is decisive for the evaluation of the maximum risk. According to lit. (a) sent. 2 the moment of creation of the last security is relevant. This is justified since only at this moment can the maximum total and therefore the proportions be established. The time at which a security is assumed must be determined according to Article 1:104.

Illustration 2

In January, A had assumed a dependent personal security with a maximum amount of 3.000 for a credit to D of 3.000. In May the creditor and A agree to reduce the maximum amount to 2.000 and in June B assumed a dependent personal security with a maximum amount of 1.000. As the moment of creation of the last security is decisive and in June A is liable up to 2.000 and B up to 1.000, the portions are the same as in Illustration 1.

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Article 1:108: Several Security Providers: Internal Recourse

C. Definition of the Maximum Risk for Personal Security (para (2) lit. (b))

5. Although most personal securities probably are limited by a maximum amount, it is according to these Rules possible to agree upon a dependent personal security without stipulating a maximum amount (cf. Article 2:104). In these cases the maximum risk is determined by the amount of the secured claim or, in case of a current account, by the credit limit at the time of the creation of the last security (lit. (b) sent. 2 and lit. (a) sent. 2) since the amount of the secured credit determines the maximum each personal security provider may be obliged to pay.

Illustration 3

For a current account with a credit limit of 3.000 A had assumed a personal security with a maximum amount of 2.000, whereas B had assumed the debt without limitation for security purpose. Later on the credit limit is extended to 5.000. A and B being solidary debtors only for 3.000, A is insofar internally liable for 2/5 and B for 3/5, the latter being alone additionally liable for the remaining 2.000.

6. If a credit limit does not exist, the final balance of the secured credit is decisive according to lit. (b) sent. 3. This rule is justified by the mere fact that there is no other possible moment to determine the maximum risk.

Illustration 4

A and B had assumed dependent personal securities for all existing and future obligations of D towards C, A agreeing a maximum amount of 1.000 whereas B’s security had not been limited. If D in the end owes 9.000, A’s portion is 1/10 and B’s 9/10.

D. Definition of the Maximum Risk for Proprietary Security (para (2) lit. (c))

7. For those types of proprietary security which can only be created if a maximum amount is agreed (e.g. real estate mortgages), the maximum risk can be determined as for personal securities (lit. (c) sent. 1). But in most cases of proprietary security in movables, no agreement of a maximum amount will be necessary. The maximum risk is determined in these cases by the value of the asset(s) serving as security (lit. (c) sent. 2), the moment of creation of the last security being again decisive (lit. (a) sent. 2). If the value of the assets diminishes later on, the proportion is not affected.

Illustration 5

For a credit of 3.000 A had assumed a dependent personal security with a maximum amount of 2.000 and B gave its car as security to the creditor, the value of the car being 2.000 at the time of contracting. Two years later, the debtor has repaid only 1.000 and the creditor has obtained the remaining 2.000 from A. The latter is entitled to demand 1.000 from B as the portion of each security provider is 1/2. If the value of the car is only 500, A will only get this sum since B is not personally obliged.

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E.Limitation of the Maximum Risk (para (2) lit. (d))

8. Often the security provider assumes a personal security or creates another security whose maximum amount or value is at the time of contracting higher than the secured credit. In these situations it seems to be appropriate not to limit the maximum risk by the maximum amount or the value but by the amount of the credit since this is the amount the security is liable for.

Illustration 6

For a credit of 3.000 A had assumed a dependent personal security with a maximum amount of 4.000 and B one with a maximum amount of 1.000. If A had to pay 3.000 to the creditor, he may demand payment from B up to 750 (the sum of all securities being 3.000 + 1.000 = 4000 and B’s portion being therefore 1/4).

9. However, if the amount of the secured claim is reduced after creation of the last security below the agreed maximum amount of a security, this is irrelevant, since otherwise any payment by the debtor would be mostly to the advantage of the security with the higher risk.

Illustration 7

For a credit of 3.000 A had assumed a dependent personal security with a maximum amount of 1.000 and B one with a maximum amount of 2.000. The debtor has paid 1.500 to the creditor. A’s portion remains 1/3 (= 500) and B’s 2/3 (=1.000), rather than 10/25 (= 600) and 15/25 (= 900).

F.Special Limitation (para (2) lit. (e))

10. Paragraph (2) lit. (b) last sentence deals with an unlimited credit that is secured by an unlimited personal security; the maximum risk here is determined by the final balance of the credit. This rule can without any problems be applied if only unlimited personal securities are assumed since all security providers are equally liable in this situation.

Illustration 8

A and B had assumed dependent personal securities for all existing and future obligations of D towards C, both securities not being limited by maximum amounts. Independently from what D owes finally, both personal security providers are liable for 1/2 since the final balance determines both maximum risks which are therefore identical.

11. The solution according to lit. (b) is still adequate if an unlimited credit is secured by unlimited personal securities and limited securities, provided that the final balance of the credit is higher than the limitations of the limited securities (cf. Illustration 4). But matters differ if the final balance is lower:

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Illustration 9

A and B had assumed dependent personal securities for all existing and future obligations of D towards C; A agreeing a maximum amount of 1.000 whereas B’s security had not been limited. If the final balance of the credit is 500, A would according to the rule in lit. (b) be internally liable for 2/3 and B (only) for 1/3.

This solution seems to be unfair because A who only wanted to assume a limited risk is burdened with a higher portion than B who accepted every risk up to the loss of all his assets. Moreover, as is shown by Illustration 8, the situation of A would be better if he also had assumed an unlimited personal security. To prevent this obviously unfair result, lit.

(e) limits the maximum risk of the anyway limited security to the final balance of the credit so that finally all security providers are inter se equally liable.

G.Exceptions

12.Paragraph (3) contains two exceptions to the preceding rules. The first exception refers to proprietary security rights granted by the debtor. Since it is the debtor who eventually has to reimburse all other security providers, it would make no sense if the debtor as a provider of proprietary security was allowed to participate in the internal recourse of the security providers as provided for in this Article. If the creditor enforces a security created by the debtor, the debtor may not take recourse against the security providers. On the other hand, if a third party security provider satisfies the creditor, the former is as a matter of course entitled to enforce a security right granted by the debtor, into which the third party security provider is subrogated according to Article 2:113 (1) sent. 2 juncto para (3).

13.The second exception contained in para (3) relates to security providers who would not have been under any liability towards the creditor. In certain situations for example, a provider of dependent security can refuse payment to the creditor under Article 2:103, while a provider of independent security is not entitled to do so. This position would be undermined if the provider of independent security could after payment to the creditor hold the provider of dependent security internally liable. The same principle applies to a security provider whose liability towards the creditor is only subsidiary: as long as it may invoke the subsidiary character of its liability according to Article 2:106, this security provider is also protected against other security providers’ claims for internal recourse.

National Notes

I. Generalia . . . . . . . . . . . . . . . . . . . . . . . .

nos. 1-3

II. Internal Recourse

A. Recourse between Providers

of Dependent Security . . . . . . . nos. 4-10 B. Extension to All Securities . . nos. 11-16

C. Internal Recourse Restricted
to Some Providers of
Security . . . . . . . . . . . . . . . . . . . . . .	nos. 17-19
III. The Measure of Internal
Recourse
A. Party Agreement . . . . . . . . . . . . .	no. 21

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B. Internal Liability in the	IV. Type of Liability . . . . . . . . . . . . . . . .	no. 27
Absence of Party Agreement	nos. 22-26

I. Generalia

1.General legal provisions on recourse between several providers of security seem to exist only in DENMARK (Promissory Note Act § 61 juncto § 2 para 2 juncto Insurance Agreement Act § 42; cf. Pedersen, Kaution 97) and the NETHERLANDS (CC art. 7:869 juncto art. 6:152). However, the FINNISH LDepGuar of 1999 regulates not only the relationship between providers of dependent personal security (§ 31) and their relationship vis--vis providers of proprietary security (§ 30 para 3) but also the right of recourse of third party pledgees (§ 41 juncto § 30). As far as general legal provisions on recourse between several debtors exist, these are in GERMANY not directly applicable to providers of security due to the peculiarly narrow concept of solidary liability under GERMAN law which requires an equal basis of the obligations, which does not exist for different types of security providers’ obligations (see supra national notes to Art. 1:107 no. 17; BGH 29 June 1989, BGHZ 108, 179, 183 and 187). In some countries legal provisions on recourse between all providers of personal security exist (SWEDISH Promissory Note Act § 2 (2) juncto Ccom chap. 10 § 11). Nevertheless, in most continental legal systems there are at least legal provisions on recourse between several providers of dependent personal se-

curity (AUSTRIAN CC § 1359; BELGIAN, FRENCH and LUXEMBOURGIAN CC art. 2033 (since 2006: FRENCH CC art. 2310); DUTCH CC art. 7:869; GERMAN CC § 774 para 2; GREEK CC art. 860; ITALIAN CC art. 1954; PORTUGUESE CC art. 650; SPANISH CC art. 1844).

2.For all legal systems two observations can be made: First, freedom of contract prevails also in this part of the law so that the parties are free to deviate from legal provisions on recourse (see e.g. AUSTRIA: Schwimann/Mader and Faber CC § 1358 nos. 25-26; BELGIUM: Du Laing nos. 13, 23; Van Quickenborne no. 534; ENGLAND: Andrews and Millett nos. 12-001 s.; FINNISH LDepGuar § 30 para 3, 31 para 1 and 2; FRANCE: CA Lyon 13 Oct. 1981, JCP N 1983, II no. 112; CA Riom 2 Oct. 1996 (two decisions), JCP G 1997, I no. 4033 (9); Simler no. 636; GERMANY: BGH 29 June 1989, BGHZ 108, 179, 183, 186; GREECE: A.P. 793/1995, NoB 45, 775; ITALY: Andreani 704; NETHERLANDS: du Perron and Haentjens art. 869 no. 2).

3.Secondly, while the debtor does not have any right of recourse against third party providers of security, (especially proprietary) securities granted by the debtor are fully available to the providers of security after they have performed to the creditor (ENGLAND: Andrews and Millett no. 11-024; FINLAND: LDepGuar § 30 para 1; GERMANY: BGH 5 April 2001, NJW 2001, 2327, 2329; ITALY: Ravazzoni 269; SCOTLAND: Stair/ Clark no. 930). However, in FINLAND an exception applies if the debtor’s proprietary security by virtue of legislation is liable only subsidiarily (LDepGuar § 30 para 2).

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Article 1:108: Several Security Providers: Internal Recourse

II. Internal Recourse

A.Recourse between Providers of Dependent Security

a.The Principles

4.It is common opinion in most legal systems that several providers of dependent security are in the absence of any special agreement and insofar as they secure the same debt in general internally liable like solidary debtors. This means that a provider of security who paid the creditor, as a rule, has a right of recourse against the other provider(s) of security, irrespective of the circumstances, especially the time of assumption of the dependent personal security. This right arises in ENGLAND independently of any contract and is equitable in nature (Andrews and Millett no. 12-001). In most other legal systems this results from the general rules on co-debtorship (AUSTRIAN CC §§ 1359 sent. 2, 896; DENMARK: Promissory Note Act § 61 juncto § 2 (2); Andersen, MøgelvangHansen and Ørgaard 35 ss., 251 s.; Pedersen, Kaution 97 s.; DUTCH CC art. 7:869 juncto art. 6:152; GERMAN CC §§ 774 para 2, 426; GREEK CC art. 860, 487; ITALIAN CC art. 1954; SCOTLAND: Stair/Clark no. 940; SPAIN: CC art. 1844 is applied by the Supreme Court in cases of plurality of securities agreed to be liable solidarily (TS 4 May 1993, RA 1993 no. 3403) as well as of securities as separate obligations (TS 24 May 1994, RA 1994 no. 3741); Guilarte Zapatero, Comentarios 258; Dı´ez-Picazo 451; SWEDEN: Promissory Note Act § 2 para 2 juncto Ccom chap. 10 § 11; Walin, Borgen 30; Walin, Lagen om skuldebrev 26 ss.). In PORTUGAL, several providers of personal security are internally liable like solidary debtors, but the provider of security with beneficium divisionis who pays voluntarily is only entitled to internal recourse after satisfaction has been sought from the debtor (CC art. 650 para 3). Without a reference to the rules on internal recourse between co-debtors, the same result is achieved more directly in BELGIUM, FRANCE and LUXEMBOURG under CC art. 2033 (since 2006: FRENCH CC art. 2310) according to which the provider of personal security who paid the creditor in one of the cases enumerated in CC art. 2032 (since 2006: FRENCH CC art. 2309) has recourse against each of the other providers of security.

5.Only in FINLAND the right to demand recourse depends upon the circumstances, especially the chronological order in which the several dependent personal securities have been established (LDepGuar § 31 para 2): a subsequent provider of security may demand full payment from an earlier provider of security; but an earlier provider of security may not demand anything from a subsequent provider of security.

b.Recourse upon Part Payment

6.Opinion is divided on the question under which circumstances a right of internal recourse arises upon part payment of the secured obligation.

7.In AUSTRIA, BELGIUM, ENGLAND, FINLAND, FRANCE, ITALY, the NETHERLANDS and PORTUGAL a provider of personal security seems to be entitled to recourse upon partial payment to the creditor, provided this payment surpasses its share (AUSTRIA: OGH 23 April 1998, BA 1999, 154 critical note Bacher; OGH 23 Feb. 1999,

BA 1999, 827 note Riedler; Bydlinski 105-106; BELGIUM: Du Laing no. 3; Van Quickenborne no. 530; ENGLAND: Andrews and Millett no. 12-004; FINNISH LDepGuar §§ 30

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