The rules for terminating the guarantee and its features are established in Art. 367 Civil Code. Normally, the general cases of this procedure are defined. Consider the key provisions of Article 367 of the Civil Code.
Termination of Surety
It has a number of specific features. General rules are present in paragraph 1 of Art. 367 of the Civil Code of the Russian Federation. The provisions of the norm indicate the following. The guarantee is withdrawn upon termination of the obligation that was secured by him. The latter may occur during the liquidation of the debtor after the presentation by the creditor of the claims. In this case, the termination of the guarantee does not occur. Claims may be filed in a court of law or in any other manner prescribed by law. In some cases, the primary obligation may be partially secured by a guarantee. In such situations, partial performance will be counted against unsecured debt. There may be several obligations between entities. However, only one of them can be provided. If the debtor does not indicate exactly what obligation he is repaying, then it is considered that he fulfilled the unsecured.
Change of conditions
Paragraph two of Art. 367 of the Civil Code of the Russian Federation provides for the preservation of the obligation in its original form, if it was adjusted without the knowledge of the debtor. This provision shall apply if the change entails an increase in liability or adverse consequences for it. The agreement between the parties may provide for the pre-expressed consent of the debtor to be liable under new conditions in case of adjustment of the obligation. In this case, it is necessary to determine the limits within which the subject is ready to answer for debts.
Obligation translation
It acts as the basis for the removal of the guarantee. In this case, the following condition must be fulfilled. Termination of the guarantee is allowed when transferring the debt, if the person within a reasonable time from the date of the notification was not agreed to continue to be responsible for the new debtor. The response to the notification should be explicit and allow to determine the circle of entities upon transfer of debt on which the guarantee will be saved.
Additionally
In paragraph 4 of Art. 367 of the Civil Code of the Russian Federation explains the situation associated with the death or reorganization of the debtor. In this case, the entity, which must be liable for obligations in its place, continues to bear the corresponding responsibility. If the creditor refuses to accept the proper execution, which is offered to him either by the debtor or by an additional party to the contract, the guarantee shall be terminated.
Term
The person liable for obligations instead of the debtor upon the occurrence of the agreed conditions, in accordance with Art. 367 of the Civil Code , ceases to be liable at the end of the period provided for in the contract. In some cases, entities do not set such a term in an agreement. In these situations, the termination of the guarantee occurs if, within one year from the date of fulfillment of the obligation, the creditor does not present claims to the guarantor. When the deadline is not defined and cannot be set at the time of demand, the specified period for sending claims is increased to 2 years. In case of presentation by the creditor of claims for early repayment of the obligation, the duration of the guarantee is not reduced. It is determined in accordance with the terms of the original contract.
Art. 367 of the Civil Code of the Russian Federation with comments
The obligation of the entity that is liable for the debtor upon the occurrence of the conditions agreed upon in the contract shall be liquidated upon repayment of the principal debt. In such a situation, the subject of collateral is already absent, respectively, relations relating to it also cease to exist. A person accepts an obligation to bear responsibility of another person to the creditor in accordance with the terms of the secured debt. Such relationships are usually based on a certain trust between the immediate debtor and the entity vouching for it.
Important point
In Art. 367 of the Civil Code of the Russian Federation , it is established that the conditions of liability of a person who is obligated for a debtor upon the occurrence of certain circumstances are maintained if he was not notified of the changes made to the agreement by the creditor. Otherwise, the rights of a third party would be violated. If a change in the obligation would be allowed without the consent of the subject, and at the same time its responsibility would increase, then this would lead to a deterioration in the position of the third party. Applying Art. 367 of the Civil Code of the Russian Federation, judicial practice in such situations is guided by Art. 308 (p. 3).
The specifics of the subject composition
In Art. 367 of the Civil Code of the Russian Federation, a transfer of an obligation is permitted with a notification to the person responsible for its execution by the direct debtor. In this case, the property status of the entity entering into the relationship, its reputation, ability / inability to answer to the creditor is of importance. Accordingly, the surety may not agree to remain so. In this case, one more nuance should be taken into account. According to the provisions of Article 391 of the Code, the transfer of an obligation by a debtor is permitted only with the consent of the creditor. Accordingly, he, if he does not want to terminate the guarantee, does not give it or gives, but after the guarantor assumes obligations to bear responsibility for a new participant in the relationship.
Rejection
An entity that is liable to the creditor for the proper repayment of the obligation by the debtor, in case of violation of the terms of the transaction, the latter pays the specified amount. If execution was proposed, but it was not accepted, then such behavior is illegal. Repayment of the obligation should be recognized as appropriate. Accordingly, the person who is the guarantor is exempted from liability. The main performer of the obligation is the debtor. In this case, repayment may be assigned to a third party, unless otherwise provided by law or other regulatory acts, the essence of the relationship or the terms of the transaction. The guarantor himself may also act as a third-party entity. Moreover, in this case, his status will be somewhat different. He will act as any person who fulfills the obligation to repay the principal debt for the debtor. In such a situation, the creditor must accept execution. If he refuses, the order shall be terminated.
Explanations
The guarantor, by offering proper execution to the creditor, creates legal obstacles to the occurrence of circumstances that would entail his obligation. In this case, he acts instead of the debtor. The obligation in this case may provide only for the payment of money. At the same time, the legislation allows the guarantor to offer the creditor the repayment of other debts (including non-monetary ones). The guarantor, acting not for the debtor, has nothing to do with proper execution. Its role is expressed only as a result of debt repayment. The right to fulfill an obligation is provided only for the creditor.
Specificity of calculation of terms
In any, including an accessory obligation, a performance period must be established. There are no perpetual debts. About the periods of fulfillment of the obligation stated in paragraph 6 of Art. 367 of the Civil Code of the Russian Federation. The term may be specified or indefinite. In the first case, its termination will entail the termination of the guarantee. When establishing the period during which a person will be liable for the result of repayment by the debtor of the main obligation, it should proceed from the period that is set for execution. Consider an example. Suppose a deadline of six months is set for the performance of an obligation. In this case, the guarantee expires earlier. In this case, it will not be considered as ensuring the fulfillment of the obligation. If a contract is established between the creditor and the debtor, but not in the surety agreement, then the duration of the latter is determined by the initial conditions of the transaction.
Occurrence of duty
The surety repays the debt from the day on which the principal debtor did not fulfill or improperly performed the obligation. This moment is considered the date of the obligation. If the deadline has already arrived and the debtor has not taken the appropriate action, the surety must execute them for him. This also applies to cases of reorganization of an enterprise or the death of a citizen. This rule establishes paragraph 4 of Art. 367 of the Civil Code of the Russian Federation. To eliminate legal uncertainty, statute of limitations has been introduced into the norm .