The relations of participants acting in the right field require confidence in each other's integrity. Therefore, if a long and honest relationship has not been developed between them, then it is recommended to guarantee the fulfillment of contractual obligations. And not only the contractor, but also the customer of the works (services). World practice has many developed mechanisms for protecting both sides of the business, and the guarantee is recognized as the best among them.
In Russian law, it appeared in 1994 along with the adoption of the first part of the Civil Code (CC).
If officially
In the Civil Code of the Russian Federation bank guarantees (BG) are devoted to articles 368-379 of the 23rd chapter. The law classifies a guarantee as a form of securing transactions between business entities. Articles on BG follow articles on bail. The scientific community is still debating whether this guarantee is a separate guarantee.
In addition, the reading of the first articles is surprising by the inconsistency of the concept of “bank guarantee” to the subject composition of the legal relationship that it creates. This is due to the fact that the guarantor can be not only a bank, but also an insurance company or non-bank credit institution.
But the relevant banking law classifies BG as a purely banking transaction. This allows us to conclude that:
- Such guarantees can only be issued by institutions licensed.
- In respect of other business entities and their officials whose participation is proven, the penalties provided for in the Criminal Code and the Code of Administrative Offenses can be applied.
Despite the fact that the provisions of the Civil Code of the Russian Federation are considered priority, a bank guarantee is recognized by judicial practice only for financial institutions licensed by the Central Bank of Russia.
Civil Code clarifies
A bank guarantee (Civil Code, Article 368) is defined as a specific relation in the sense of monetary obligations between:
- A guarantor not participating in the transaction secured by BG.
- The beneficiary, who is the creditor under the main contract, and according to it, assumes the obligation to pay a certain amount of money in the case of a claimed claim from the beneficiary (the beneficiary has the right to demand the payment of the specified amount legally).
Document Features
In addition, in accordance with the Civil Code of the Russian Federation, a bank guarantee implies a textual document containing all the conditions of the said agreement. That is, the obligations given by the guarantor must necessarily be fixed on paper. However, non-compliance with this condition cannot entail the invalidity of the transaction. As well as recognition of the guarantor's debt. For example, a document received by fax or e-mail is not recognized as an obstacle. Moreover, the original for the presentation of the rights of the beneficiary is not needed at all (exception - bearer guarantee).
Bank Guarantee Terms
Derived from articles of civil law and should be spelled out in the contract. The beneficiary receives a letter of guarantee, which indicates:
- Each of the parties to the agreement (guarantor, beneficiary and principal).
- The subject, (work, service) of the obligation being secured.
- Dates.
- The direction of the list of accompanying documents.
- Face value
- With a revocable warranty - the right and procedure for revocation.
- Terms for payment.
According to the Civil Code of the Russian Federation, in a bank guarantee, the denomination cannot be set less than the contract amount. The term is determined by mutual agreement of the parties. Particular attention is paid by all parties to the agreement to the rules for sending requirements, because they must be strictly observed. In certain circumstances, indicate a separate period for consideration of the request, otherwise it is considered standard - 7 days.
If the principal considers it necessary to show his viability, he reflects in the contract a clause guaranteeing payment upon demand, without undue evidence. These include, for example, a court order that ruled that the principal was guilty of non-delivery, non-payment and other non-compliance with the terms of the contract.
In addition, cunning and experienced lawyers acting on behalf of a financial institution can introduce into the contract such a mechanism for sending and / or serving a payment request that will not allow the beneficiary to fulfill all banking conditions and even prove the fact of their fulfillment.
Thus, a bank guarantee (article of the Civil Code of the Russian Federation 368 indicates this) has many nuances. Therefore, its regulation often occurs through court decisions that clarify certain points missed by the legislator.
Issuing a document
The Civil Code requires a bank guarantee to be issued in a single document on the letterhead of a financial institution.
The document is signed by the first person of the company or his deputy, who has the necessary permission from the Central Bank of the Russian Federation. Mandatory warranty is the signature of the chief accountant.
A document is issued to the principal under the act. The latter pays the agreed banking commission, and BG transfers to the counterparty.
Execution of a document
According to the Civil Code, a bank guarantee is presented for payment to the bank by the beneficiary in person. To avoid disagreements, the order of presentation and the list of accompanying documents are prescribed in the contract to the smallest detail.
Russian law does not provide for payment in the event of a first claim. Only at the second request and subject to notification by the bank guarantor of the repayment of a certain part of its debt. This makes it possible for the bank to refuse for the first time, but upon the next request payment must be made implicitly.
Having received documents demanding payment, the bank notifies the principal by sending him copies of the documents received.
Requirements for BG can be transferred to a third party, but this is only in the case of an item prescribed in the contract with a possible assignment. And only at the end of payments to the beneficiary are recourse claims possible.
New tool
Recent changes to the code have made the guarantee independent. What does it give? Now, according to article 368 of the Civil Code of the Russian Federation, a bank guarantee can be issued not only by a bank, but also by a commercial organization.
If it is not included in the list of commercial ones, for example, it is a state body or a charitable organization, then the guarantee issued to it goes into the sphere of norms governing the contractual relations of the guarantee.
These guarantees do not have special differences, except for three nuances:
- Under certain circumstances, the face value of the guarantee may be changed in the direction of increase or decrease.
- The guarantor is required to pay the amount that is prescribed in the documents, although the guarantee does not determine the exact number of the transaction (together with interest and debts).
- The guarantee is unconditional (that is, even in court it is impossible to dispute the legitimacy of the claims made).
It is clear that not every creditor will agree to such a bank guarantee agreement under the Civil Code of the Russian Federation. It is not easy to accept security from a person who does not have an appropriate license, no matter what articles of the code he covers. It’s easier to work with the bank. For his actions are tightly controlled.
On practice
These innovations are actively moving forward in life. For example, the case is known when the holder of the assets of the holding became an independent guarantor for the obligations of the operating system of the entire company. This option of an independent bank guarantee under the Civil Code of the Russian Federation is interesting in that the creditor can receive not only money, but also some percentage of the shares.
Grounds for terminating a bank guarantee
The Civil Code indicates a limited list of requirements for terminating a guarantee. Each item on the list is associated with the full fulfillment by the guarantor of the issued obligation or with the personal will of the beneficiary, expressed unilaterally.
There are four such grounds:
- Payment of the amount for which the guarantee is issued.
- Completion of her term.
- Return of guarantee if the beneficiary waives his rights.
- The same, but subject to written assurance of the release of the guarantor from the issued obligations.
Since, according to the Civil Code of the Russian Federation, the termination of a bank guarantee is a kind of relationship between the beneficiary and the guarantor, the code obliges the latter to notify the principal in any way.
Special rules on the termination of BG require several common grounds for termination of the contract. So, for example, the beneficiary’s refusal of the obligations undertaken by a written message on the release of the guarantor from his obligations is qualified by the Civil Code as a forgiveness of debt. Or the transfer of the amount (full, under the contract) to the guarantor from the beneficiary, which is automatically recognized as the basis for the termination of all obligations, because they are performed properly.
A few more reasons
In addition to the described grounds for terminating the BG, the reason may also be compensation, a coincidence in one person of the creditor and the debtor, offset of the counter uniform claim, novation of the obligation and others.
An exception to the termination of a guarantee may be only the impossibility of performance. And this reason does not apply to all monetary obligations, including banking.
Regression lawsuit
The Civil Code contains the norm that the guarantor has the right to apply to the principal with the requirement to recourse the amounts paid to the beneficiary under BG in the order of recourse. This right is guaranteed by agreement between the principal and the guarantor, as a result of which the guarantee was issued.
In the comments to the Civil Code of the Russian Federation on a bank guarantee, some jurists write that the situation is possible only if the right to regressive claims is expressly stated in the agreement. Many disagree with this statement, relying on paragraph 1 of Article 379 of the Code. This norm does not regulate the rules according to which the right of the guarantor to file a regressive claim arises from the contract with the latter. It merely indicates that the relationship between the guarantor and the principal can be exclusively onerous. That is, for the issuance of a guarantee, the principal is obliged to pay a fee to the guarantor. The size and procedure are prescribed in the contract between the principal and the guarantor.
And from this it follows that the right to file a regressive lawsuit against the principal, which, based on the rules of the Civil Code, belongs to the guarantor, who has paid a certain amount under the guarantee to the beneficiary, cannot but take into account the amount paid to the grant for the guarantee. Therefore, it is the scope of the recourse action against the principal from the guarantor, taking into account the contribution to the latter, that should be decided in the agreement between the principal and the guarantor, and not the granting of the right to recourse claim to the latter in order to avoid unjustified enrichment of the guarantor at the expense of the principal.