KYPRIAKON TAMIEFTIRION AND OTHERS ν. MICHAEL G. LEPTOS (V12) 1 CLR 60 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων (V12) 1 CLR 60 1925 December 17 Action No. 613/
- [NETTLETON, C.J. AND GRIMSHAW, P.J.] KYPRIAKON TAMIEFTIRION BY ITS EXECUTIVE COUNCIL CONSISTING OF A. ARTEMIS AND SEVEN OTHERS v. MICHAEL G. LEPTOS. GUARANTOR-BOND-EXECUTION-"UNTIL FINAL PAYMENT"-LIABILITY-BANKERS CUSTOM-MEJELLE ARTS. 624 AND 639 INTEREST IN ADVANCE ON EXTENSIONS-NO NOTICE TO GUARANTOR. The facts are sufficiently disclosed from the judgment of the District Court which runs as follows:- Judgment: This action is based on a bond dated the 30th May, 1922, whereby the defendant as guarantor undertook certain liabilities. On the strength of this plaintiffs lent £2,000 to N. Ch. Tavernaris & Bros. The bond was originally made payable in three months, but with a provision made as to payment of interest after expiration. The plaintiffs after the expiration of three months granted an extension for three months, after they had received £300 on account of capital (thereby reducing the Capital Debt to £1,700), and after having received a sum of £34 for the interest in advance for the period of the extension on this reduced capital sum. Further extensions were granted under similar terms and conditions up to the 23rd June,
- After that plaintiffs continued to grant further extensions without receiving interest in advance up to the 14th July, 1924, when they called upon the defendant to pay the balance due. Defendant refused payment on the grounds that he had been released from all liabilities on account of the extensions given without his knowledge or consent, and because plaintiffs received interest in advance for the various periods of extension so granted. Hence this action. We find that the bond is more or less in customary form and in the usual way makes provision for payment of interest after expiration. We further find that defendant undertook to pay as guarantor up to the final payment. We pay no attention to the words "jointly and severally" or to the words "and payer" because the first phrase appears to us to be meaningless and the second is a mere attempt to interpret the legal liability of a guarantor under Turkish Law. We hold that defendant signed as a guarantor pure and simple. We find that the phrase "until final payment" which pre-supposes payment by more than one instalment coupled with the general provision as to what should happen in the event of non-payment at expiration proves that there was an anticipation of an extension. This supposition is strengthened by the evidence we have before the Court that 95% of the bonds (including the one in which defendant himself was a debtor), issued in favour of plaintiffs, on similar terms, are never paid at their expirations and that extensions are always granted. We find that defendant should have known from the language of the bond that there was a possibility of extension. Nevertheless he signed the bond as guarantor "until final payment" and not for the fixed definite period required by Art. 639 of the Mejelle, and that by signing in this way the defendant's liability to pay did not commence until the three months had expired, i.e., on the 31st August, 1922, but was not, under the circumstances, in any way limited in period after that date. The Turkish Commentators on Arts. 624 and 639 of the Mejelle support our view. Now the document shows that the interest for the first fixed period of three months was received in advance. The evidence before us proves that this is the practice of all Banks and Savings Banks in Nicosia. It is also proved that all extensions and renewals are usually for three months. The defendant is a merchant of thirty years standing in Nicosia and must have been aware of this practice. Now having found that he anticipated an extension he should have known that any extension to he granted by the plaintiff Bank would have been granted "on usual terms," i.e., for three months and interest payable in advance. The plaintiffs, in our opinion therefore, have done nothing to alter the terms of the original contract arid the person who made himself liable without any reservation "until final payment" must bear the full consequences of his own act. As far as we were able we have examined the records of the Supreme Court in the case Vondiziano v. Ktori of Larnaca, Appeal No.
- In that case the second defendant, the guarantor on the bond, contested her liability on the grounds, inter alia, that the plaintiff had without her knowledge and consent granted extensions from year to year, after 'receiving interest in advance, and in the end she was held liable, although we think that there was in her case certainly no ground for anticipating that interest would have been received in advance, which fact might-at present we are undecided whether it would-have prejudiced her rights and privileges as a guarantor. We therefore give judgment for plaintiff as claimed with costs. From this judgment the defendant appeals. For Appellant Stavrinakis and Clerides. For Respondents Paschal and Chrysafini. Judgment: Affirming the judgment of the District Court. Appeal dismissed with costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο