§ 6-6. Release of security: when is the guarantor released from liability?

Finansavtaleloven·LOV-2020-12-18-146

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In brief

The text of the law (unofficial translation)

§ 6-6. Release of security etc.

(1) Without the express consent of the guarantor, the lender has no right to release security that was provided or was assumed to be provided when the guarantee agreement (kausjonsavtalen) was entered into. This does not apply if other security is provided that is at least as good for the guarantor as the security being released, or if the release has no significance or only very limited significance for the guarantor's position.
(2) Consent under the first paragraph can only be given in connection with an imminent release of a specifically identified security. Consent from a consumer shall be in writing and signed. § 3-9 third paragraph applies correspondingly to the guarantor's consent.
(3) If security is released in breach of the first paragraph, the guarantor is no longer bound by the guarantee agreement.
(4) If security is not provided in accordance with what was assumed when the agreement was entered into, the guarantor is no longer bound by the guarantee agreement. In the guarantee agreement, the lender may nevertheless make a specific and express reservation that a particular security will not be provided as assumed when the guarantee agreement was entered into.
Source: Lovdata — Finansavtaleloven (the Financial Contracts Act) § 6-6

What does this mean?

The lender therefore cannot release such security without the guarantor's express yes. This applies to security that was provided, or that was assumed to be provided, when the guarantee was agreed. There are two exceptions: the lender provides other security that is at least as good for the guarantor, or the release means little or nothing for the guarantor's position.

The consent has its own requirements. It can only be given in connection with a release that is imminent, and it must concern a specifically identified security. A general consent given in advance is therefore not enough. If the guarantor is a consumer, the consent must be in writing and signed. In addition, § 3-9 third paragraph applies correspondingly. Under that section, an agreement is binding on the customer (kunde) only if the formal requirements in the first and second paragraphs of that section have been followed. The agreement may nevertheless apply if the customer does not wish to rely on the defect, or if the service provider (tjenesteyter) proves (shows with evidence) that the customer did in fact give consent.

The consequence of breaking the rules is strict. If security is released without being covered by the exceptions or a valid consent, the guarantor is released. The same applies if security is never provided as assumed when the agreement was entered into.

The section has several neighbouring provisions that supplement it. Under § 6-2, the lender must notify the guarantor in writing without undue delay if assumed security is not provided or later ceases to exist. Under § 6-4, the guarantor may at any time request information, including about the value of the security that has been provided.

Example: The lender wants to release a security and asks the guarantor, who is a consumer, for consent. The guarantor must then sign a written consent that concerns that exact security and a release that is about to take place.

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