What about guarantees?
What about guarantees?
"I'd like to buy a new car by monthly instalments. The seller would like to ask me for a commitment from my parents and is talking about a guarantee or surety. What does this mean in legal terms?
Maria, Geneva
A guarantee is a contract by which a person undertakes to the creditor to guarantee payment of the debt contracted by the debtor (art. 492 para. 1 CO). Under art. 493 para. 2 of the Swiss Code of Obligations, if the guarantor is a natural person, the declaration of guarantee must be in the form of a notarised deed in accordance with the rules in force at the place where the deed is drawn up (for Geneva and Vaud: a notarised deed). There are various types of guarantee with different characteristics.
The "porte-fort" in art. 111 of the Swiss Code of Obligations is a different institution, although it has a similar purpose: a person who promises another person that a third party will do something is liable to pay damages if the third party fails to perform his or her obligation.
The distinction between these two contracts is tricky. In principle, if the undertaking is "independent of the principal obligation", it is a porte-fort. If, on the other hand, the undertaking is "ancillary to the principal obligation", it will, in principle, be a contract of suretyship.
Case law therefore uses indices to determine the independent nature of the obligation. The case law therefore uses indicators to determine the independent nature of the obligation. We tend to favour the accessory nature of the guarantee if the guarantor does not promise compensation, but rather the same performance as the principal debtor in the event that the latter does not perform, if the content of the guarantee is determined in relation to the principal obligation, or if the guarantor is a private individual and does not have an independent personal interest in the performance of the principal debt.
In this type of situation, it is often the case that a surety is deemed insufficient and the seller insists on a guarantee, in which case notary fees are incurred. That said, in such a situation, the possibility of your parents committing themselves directly as buyers seems considerably less complicated. From a legal point of view, they would then become the owners, and it would be up to them to sell the vehicle back to you.
