The continuing harsh economic conditions see more and more businesses going into examinership. Examinership has serious implications for landlords.
The Irish President has signed the Credit Institutions (Stabilisation) Act 2010 (the Act) into lrish law. The Act grants far reaching and unprecedented powers to the Irish Minister for Finance to facilitate the restructuring and stabilisation of the troubled Irish banking sector.
The Companies (Amendment) Act 1990 (the 1990 Act) provides the statutory framework for petitioning the High Court for the appointment of an examiner to a company and providing the company concerned with a certain level of protection from its creditors. In practice, a significant issue which often arises is the enforceability of the provisions of a guarantee in the context of an examinership. The purpose of this article is briefly to look at the enforceability of a guarantee both during the period of protection and once it ends.
DURING THE EXAMINERSHIP
Conversion law of “Decreto Sofferenze” (D.L. 59/2016)
On 3 July, 2016, Law Decree no. 59 of 3 May 2016 was converted into Law no. 119 of 30 June 2016, through various amendments.
The Tribunal of Milan with a decree of 17 September 2015 ruled that the enforcement of a bank guarantee, pending therequest by the debtor to authorize the stay or termination of the same in a concordato preventivo procedure, bars thedecision by the Tribunal
The case
In general, creditors in Montenegro may secure their claims by various types of security over debtors’ assets, such as pledge (zaloga), mortgage (hipoteka), suretyship (jemstvo), bills of exchange (menica), etc.
In a ruling dated 16 October 2015, the Dutch Supreme Court has confirmed the enforceability of security surplus arrangements in the event a security provider is declared bankrupt. In addition, the Dutch Supreme Court has confirmed that, unlike statutory recourse claims (regresrechten), contractual recourse claims can be construed in such a manner that they come into existence (as conditional claims) before payment by the guarantor of the debt owed by the debtor, after which they become unconditional.
1. Introduction
The extension of the term for the delivery of works not authorized by the guarantor that had secured the penalty for delay does not harm it and, therefore, the guarantee is not extinguished; any increase in the penalty agreed does not extinguish the guarantee, but cannot be enforceable on the guarantor that will be liable in the terms agreed in the initial agreement. This decision discussed the effects on the guarantee of the novation of the secured obligation agreed without the guarantor’s knowledge.