Surety and Guarantee Agreements as the Instruments Used in „Hospital Liabilities” Transactions in the Jurisprudence of the Supreme Court

07.02.2019

Przegląd Prawa Handlowego, dr hab. Andrzej Szlęzak

“The author comments on the decisions of the Supreme Court related to surety and guarantee contracts, applied in „hospital receivables” transactions. The author believes that the Supreme Court was incorrect in considering a surety contract as an institution which is aimed at a change of creditor (in the meaning of Art. 53 Sec. 6 of the Law on Health Facilities and Art. 54 Sec. 5 of the Law on Health Care Activity); rather, the Supreme Court should have considered such a contract as made in fraudem legis. On the other hand, the author believes that the Supreme Court is right in their reading of the legal structure of the guarantee contract stipulated in Art. 391 of the Civil Code; its performance does not subrogate the debtor under the guarantee contract into the rights of the satisfi ed creditor (a benefi ciary of the guaranty). By exercising a guarantee contract, the debtor performs its own debt, and not a debt of another.”