A Comparative Study in the ambit of guarantor's liability in Commercial Instruments in view of Iranian and French Laws and certain Conventions

Abstract

The last phrase of the article 249 of commercial law knows the warrantor a collaborative liable only with a person from whom he has guaranteed. This has limited the milieu of guarantor's liability and enables him to be able to cite the objections whose principal debtor can also cite them. Nevertheless, the question posed in the scope of guarantor's liability and its being limited to the liability of the solidarity liable person is: in case of the principal debtor's incapacity or his signature being forged, can the guarantor, too, as for the last part of aforementioned article consider himself exempt from liability? The Iranian Lawmaker has not given a clear answer to this question, but the French Law and the Geneva Convention and UNCITRAL, meanwhile accepting independence for guarantor's liability, maintain that the guarantor alongside the other signatories has a solidarity liability. In the Iranian Law despite the silence of the lawmaker one may consider this solution: in the engagement per se, there is no subjacency. Therefore, in case of forgery in the signature the principal debtor or his incapacity, guarantor's engagement, although independently, finds actuality and as an exception to the decree of the last part of article 249 of the Commercial Law, although the principal debtor in these suppositions has no liability for the holder of commercial instrument, his guarantor is liable for paying the fund of the instrument.