As is known, among the particular types of financing granted by financial institutions, there is also the one with guarantor, i.e. the one in which the disbursement of the credit is subordinated to the presence of a third party, who assumes the task to cover any non-payments of the direct beneficiary.
As in the case of the person requesting funding, the lender can also conduct an investigation of the Central Credit Register for the guarantor, in order to verify its creditworthiness and financial strength. A possibility that obliges the guarantor to demonstrate that he possesses sources of income capable of best fulfilling his obligations.
What are the consequences of the guarantor of an unpaid loan ?
This is an often unknown issue, which should instead be very clear at the outset to those who submit themselves to the duties of the guarantor, starting from the maximum amount of the amount they must cover. In fact, it should be remembered that precisely in relation to this particular figure, there is a maximum limit established by law which must not be exceeded contractually and which must not prove to be particularly onerous compared to the amount owed by the debtor.
The so-called omnibus guarantee, or of an undetermined nature, cannot reach a prohibitive entity, under penalty of nullity of the clause concerning the guarantee underlying the loan contract.
It is precisely this factor, in practice, that determines the fundamental difference between the obligations of the debtor and those of the guarantor, or the excessively high amount that the guarantor is called to settle in the event of non-payment, a significant difference.
Whoever provides collateral for the loan must be very careful of the consequences.
In relation to the figure of the guarantor, however, certain things must be clarified, starting from the fact that in the event of cancellation of the loan agreement, the guarantee is automatically dropped. In addition, if it has not been otherwise established, the guarantee provided implies the obligation to answer also for any possible and future expenses related to the recovery of the non-payment of the loan.
One of the rights enjoyed by the guarantor in case of non-payment by the guaranteed subject is also very important: in fact, it can in turn demand from the debtor what has been paid by him, thus taking over the rights claimed by the banking institution.
A right that also extends to legal interests, which begin to flow from the moment he has paid off the loan. To do so, however, he must communicate to the debtor that he has paid the due amount, since if he does not do so, the debtor could in turn settle the installments, voiding his right.
Commitment of the guarrantor
It should also be remembered that if the banking institution extends the credit to the main debtor, without giving adequate communication to the guarantor, the guarantor can automatically free himself from any commitment made, as a judgment of the Court of Cassation has established.
A completely logical sentence, since the commitment made by the guarantor logically refers to a previously established figure and on which it autonomously decides to provide its guarantee, without having to overload itself with others in case of unwillingness. At the same time, the creditor must carry out all the legal obligations towards the principal debtor, before contacting the guarantor, formalities the non-fulfillment of which implies the dissolution of the obligation by the guarantor.
Therefore, as regards the consequences for the non-payment of the loan installments, the guarantor is subjected to the same which the main debtor faces, ranging from the attachment of the assets, to the possibility of responding in criminal proceedings, up to the notification to the SIC. Consequences that should encourage prudent behavior, as if it were a personal loan.