Warranties have two types of defenses. One type is identical to the debtor`s defence and the other is granted exclusively by the guarantee. Article 497 provides that the guarantor has not only the right, but also the obligation, to assert against the creditor claims to which the principal debtor is also entitled. This is a legal obligation for the guarantor, because in the event that the debtor waives such objections, the guarantor can invoke these objections against the creditor. If he fails to do so, it is presumed that he loses his right of recourse against the debtor. As regards the limitation period, the Court held in paragraph 21 that, where a creditor, in service of proceedings, required payment from a co-debtor jointly and severally associated with others, the other co-debtors could not rely on the extinction of the debt by a limitation period. The principle was incorporated into Romano-Dutch law and extended to guarantors by stating the view that the interruption of the limitation period in respect of a principal debtor served to interrupt the limitation period of a guarantee. The complainant asked the SCA to apply this principle to the opposite situation. The court concluded that neither Roman nor Roman-Dutch law had ever proposed to apply the opposite – in other words, that an interruption of the limitation period against the guarantor was intended to constitute an interruption of the limitation period against the principal debtor.
The Romano-Dutch writers who wrote and debated extensively on the subject were ad idem that the opposite should not apply. So it is simply not part of our common law. On the 10. In March 2003, Liberty Active Ltd (Liberty), a subsidiary of the holding company Liberty Group Ltd, entered into a written intermediary agreement with ECE Financial Holdings (ECE) under which ECE was to act as an independent intermediary for its financial products. In compensation for its services, ECE would receive a commission on the premiums liberty receives for contracts awarded in accordance with proposals submitted by ECE. The EEC was finally deselective on 24 February 2011. Between March 2003 and February 2005, eight persons, including the defendant, each signed separate but identical guarantee vouchers in which they undertook as guarantors and co-debtors to the EEC for the payment of all funds to Liberty that the freedom of the EEC might owe in the future, “for any reason.” In March 2003 and March 2011, and before receiving awards for contracts issued on proposal submitted by the UNECE, Liberty awarded commissions to the UNECE. However, during the same period, until August 2011, contracts for which ece commissions were either expired, terminated or terminated because liberty premiums were not paid. As a result, liberty`s commissions paid in advance became repayable to Liberty by ECE and by guarantees relating to security securities.
Subsequently, all rights to the collection commission claims related to the brokerage agreement were transferred to the holding company Liberty Group Ltd. On 22 September 2011, the applicant, as agent for the assignment, issued an order to reimburse the amount due to all guarantors and co-debtors. In its assertions, it argued, inter alia, that the agreement between the parties on 14. March 2011. On September 29, 2011, the summons was served on one of the guarantors, Russell John September (Mr. September), the seventh defendant […].