Letter of comfort. Action for claims filed by the creditor against the issuer of the comfort letter. Conditions and effects in relation to the legal nature of the obligation assumed by the issuer

DREPTUL AFACERILOR

Abstract

According to the provisions of Article 2.322 para. 1 of the Civil Code, the comfort letter is that irrevocable and autonomous commitment by which the issuer assumes an obligation to do or not to do, for the purpose of supporting another person, referred to as debtor, with a view to perform its obligations towards its creditor. The issuer cannot oppose to the creditor any defence or plea deriving from the obligational relationship between the creditor and the debtor. The definition given by the legislator to the comfort letter does not show that undertaking an obligation shall be made by the issuer, „for the purpose of supporting another person, referred to as debtor, with a view to perform its obligations towards its creditor”, is always a result obligation. The legal definition refers to a broad range of obligations likely to be irrevocably undertaken by the issuer for the purpose of supporting the debtor, which may be either result obligations (for example, financing the debtor), or diligence obligations (for example, supervising the debtor in the performance of its obligations), however, the activity assumed by the issuer of the comfort letter, the expected and well-established result shall never be confused with the result of the obligation assumed by the debtor itself. Consequently, the comfort letter does not ensure the performance of the obligation by the debtor and does not force the guarantor issuer to carry out the non-performed obligation of the debtor. According to paragraph 2 of Article 2322 of the Civil Code, the creditor shall be responsible for proving that the issuer of the comfort letter has not performed the obligation assumed under the comfort letter, which means that the non-performance of the obligations assumed by the debtor within the legal relationship established between the latter and the creditor is not sufficient for incurring the contractual liability of the issuer.