|
News
The Supreme Court explains the notion of a consumer surety
15.01.2010
The Civil Chamber of the Supreme Court has, in its judgment no. 3-2-1-126-09 of 8 December 2009, explained the concept of a consumer surety. Such a surety can only be given by a consumer who enters into a transaction outside the scope of his independent business or professional activities. A consumer is each natural person to whom goods or services are offered or who acquires or uses goods or services for purposes not related to his business or professional activities.
If a surety is given to secure an obligation of a company by a member of the board of that company who was, at the same time, also a major shareholder of the company, it is presumed that the person was acting in the scope of his business or professional activities, i.e. such a surety is not presumed to be a consumer surety. The burden of proof to rebut this presumption lies on the person giving the surety.
However, the situation is somewhat different in the case of non-profit associations where the mere fact that a person is a member of a company’s directing bodies does not create the presumption that the person is acting in the scope of his independent business or professional activities. Nevertheless, special circumstances may preclude treating a surety given by a member of the management board of a non-profit association as a consumer surety if the obligation secured by the surety is related to the member’s business or professional activities.
