Helmut Koziol
Restitution following the undue payment of a guarantee
Under the majority opinion, only the party who requested the guarantee has a right to restitution if the guarantee was exercised by the beneficiary although the amount guaranteed was not due; the guarantor has only a right to restitution against the party who requested the guarantee. If the latter becomes insolvent, money paid to the beneficiary will be returned to the bankrupt's estate, all its creditors will benefit and the guarantor only has a claim against the bankrupt's estate. This article examines whether the guarantor shall have a stronger position.
