Nepriklausomos garantijos autonomijos principas ir jo taikymo ribos

Abstract

In this article author analyses the autonomy principle of independent guarantees and the limits of its application. In the first part of the article the functions of the autonomy principle are discussed. Author comes to the conclusion that the main function of this principle is the liquidity of the independent guarantee, which can be well explained by the popular saying in legal literature “first pay, argue later”. In the second part of the article author analyses as what type of transaction independent guarantees can be described – abstract or causal. In author’s opinion, independent guarantee is a causal transaction, because its autonomy principle does not undermine the main objective of the independent guarantee itself – security of proper performance of the underlying obligation. Independence from the underlying obligation is only a legal tool to ensure the liquidity of the guarantee, i.e. the debtor may raise objections to the creditor related to the underlying obligation, but only after the guarantor makes a payment. In the remaining parts of the article the limits of application of the autonomy principle and possible means of protecting the debtor’s rights are analysed. The main conclusion which is drawn is that the autonomy principle can be limited in situations where the creditor’s demand to pay according to the guarantee has no conceivable basis in relation to the underlying obligation. But the standard of proof in such situations is very high: the fact that creditor has no right of demand according to the guarantee has to be manifest and clear and the evidence to prove such a fact has to be immediately available. Therefore, the interim measures aimed at preventing the demand for payment should be applied only if the aforesaid standard of proof is met.