« ACCESSORIETÀ » E « AUTONOMIA » NEL CONTRATTO AUTONOMO DI GARANZIA

The essay investigates the independent guarantee from the perspective of the function assigned to accessoriality in personal guarantees, in order to clarify the extent to which the autonomous character of that guarantee is integrable into the system. The credit enhancement function typically accorded to the guarantee places a biunivocal link between the function itself and the existence of the debt. Therefore, a nexus of “conceptual dependence” is created among the guarantee and the guaranteed relationship, to which the accessoriality gives legal form and whose holding preserves the causality of the patrimonial attributions, which represents the principle of public order beyond which the autonomous character of the guarantee cannot be prolonged, otherwise generating an unjustified displacement of wealth. This conclusion finds confirmation in the “state of the art” concerning the independent guarantee: supranational models of uniform negotiation, doctrine and jurisprudence turn out to be united by their juxtaposing the autonomy of the guarantee, not so much with the detachment between the guarantee itself and the guaranteed relationship, but rather with the impossibility for the guarantor to oppose exceptions based on the guaranteed relationship. Identifying the role played by accessoriality highlights, on another front of the inquiry, how the argument from it to ground the non-application of consumer law to the guarantee turns out to be completely misplaced.