Asociados Competition
Transcendence which in practice can have such a provision is clear: do you want to this say that if, as collateral for a debt, I get an endorsement of a company of which I am partner (or group of companies) and this is declared in competition, I will lose my endorsement? Will I lose it also if I am Managing Director (general representative) of a company that owed me several concepts that I are secured by bank guarantee? A restrictive reading of the text of article 97.2 would harm the creditor with aval particularly related with the debtor, since it would mean that in any case the judge of the competition without further formalities issue an order declaring extinguished the guarantee granted in his favor. Some authors have criticized that there is a propensity of judges in mercantile to such strict interpretations and argue that, as regards article 97.2, the judge must ponder the circumstances of the case before applying the drastic measure of extinguishing the endorsement. In this sense, cite Martin Aresti considerations: the breadth of situations covered by article 97.2 LC allows you to imagine cases in which its application will put just brake to fraudulent manoeuvres, particularly where the bankrupt is a legal person. sue. (Similarly see: Comedian). Should be avoided, for example, the administrator who has granted loans to the society declared in competition circumvents the consequences which can cause the crisis facing the society about his personal wealth (and in this regard, of which, from their administrator status, is no stranger) demanding that the guarantors of the obligation of refund the fulfillment of the guarantee, thus regaining the credit which holds against the company apart from the competition. But the application of the rule to cases in which there is no appreciating this elusive spirit will lead also to, for example, professional guarantor is released against the partner of good faith who tried to avail themselves of the business by concluding an onerous warranty on the obligation of restitution of the loan granted to the company for this. Unfortunately, the current wording of the quoted article 97.2 not gives rise to one such ponderadora work of the judge, so there is a high risk that this without further annul the guarantee in question.. .
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