Examen de las cláusulas abusivas en el contrato de fianzaA propósito de la fianza solidaria y la renuncia a los beneficios de orden, división y excusión

Abstract

The purpose of this study is to analyse the problem of unfair terms in the surety contract and, in particular, the terms related to the solidarity pact and the waiver of the benefits of order, division and excussion, which make the guarantor’s performance more burdensome than it would be in the absence of an agreement under the statutory rules. To this end, the bail contract and the relations between the creditor and the guarantor will be addressed as a preliminary matter. Then we will delve into the requirements demanded by the Courts and Tribunals for this to be considered a consumer, addressing some problematic aspects. Subsequently, we will analyse the treatment of the clauses related to the bail as general conditions of the contract, deepening into the controls of incorporation, transparency and content, to finally investigate the effects with respect to the bail contract in the event that the solidarity pact is declared null and void for being abusive, and the aforementioned waivers, addressing the faculty of integration of the courts according to the hermeneutical canons of the Court of Justice of the European Union.