A large number of property transactions require a guarantee of performance. This may be a pledge, surety, penalty and other types of collateral that are provided by law. The above methods differ in degree of impact, methods of achieving the goal.
Definition
Surety is one of the ways to ensure the obligations of the debtor by the guarantor. It is used to reduce the likelihood of dissatisfaction with the lender. A guarantee and surety are drawn up in an agreement in which a third party assumes the obligation to answer to the creditor for the fulfillment by the borrower of obligations (Article 361 of the Civil Code of the Russian Federation). This measure is applied in case of violation by the debtor of the terms of the transaction. The scope of liability is regulated by the same document. Prior to the amendments to the Civil Code, agreements were concluded in which a guarantee was imposed on future obligations. This issue caused a lot of controversy. Now such an option is possible only if the contract clearly spells out the amount within which the guarantor will be liable.
Bank requirements for guarantors
The basic requirements are simple:
- age: at least 21-23 years, for the period the contract expires, a person should not reach 55-60 years;
- permanent registration in the region of loan processing;
- stable income for the previous 6 months;
- solvency (calculated on the basis of necessary payments, taking into account the size of the monthly contribution to the bank) - should not exceed 30% of the guarantor's income.
Most often, relatives and acquaintances act as guarantors. But some banks, fearing cases of fraud, exclude this possibility from the terms of the loan. If we are talking about providing guarantees for the obligations of a legal entity, then other companies can act as guarantors. But public organizations and state institutions cannot claim this role.
Guarantee agreement
The requirements specified in the Civil Code of the Russian Federation do not allow to conclude an agreement between the debtor and the guarantor. The parties are the creditor and surety. The contract is unilateral, consensual. It creates an additional accessory obligation. The guarantor can be held liable only if the debtor fails to comply with the terms of the transaction. The accessory obligation is limited by the duration of the principal, even if the document does not contain the exact date. His assignment cannot level the guarantee agreement (Article 384 of the Civil Code of the Russian Federation).
Content of the contract:
- creditor name;
- name of the guarantor;
- scope of obligation;
- name of the borrower.
Limitations
Although the circle of persons who may act as a guarantor is not registered in the Civil Code, judicial arbitration practice has shown that in some cases the contract can be recognized as invalid. This is permissible if the guarantors are:
- state-owned enterprises that use funds for the purposes specified in the charter;
- departments, ministries, bodies of municipalities.
A surety agreement is drawn up in simple writing and must be signed by the borrower, lender and guarantor.
Responsibility of the Parties
The guarantor's task, at first glance, is simple. He must be responsible for repaying the loan if the payer is unable to fulfill his obligations. The right of the bank to demand money from the guarantor is specified in Art. 363 of the Civil Code of the Russian Federation.
Joint liability implies that the guarantor and the debtor are equally liable for obligations. That is, the claim cannot be satisfied only by one of the parties. Subsidiary liability means that the requirements to the guarantor are presented only in the absence of funds from the debtor. This option is more acceptable for guarantors. The lender will first have to spend time to prove the insolvency of the borrower. And if he begins to hide, then it will be almost impossible to do. So, the bank cannot present any requirements to the guarantor. Therefore, such a scheme is used extremely rarely.
The document should clearly indicate which losses are compensated by the guarantor:
- main debt;
- interest on the use of funds;
- forfeits;
- legal costs.
If a guarantee, a sample contract of which can be taken from a bank employee at the time of the decision, is concluded with a credit institution, then it will most likely be written in it that losses and an uncollected forfeit should be compensated by the guarantor. In other cases, the scheme of partial compensation of damage is most often used, that is, payment of only the main debt.
Another point to which you should pay attention: for violation of the terms of payment of debt, a “negative” credit history is formed at the client. But in the case of a guarantee, the guarantor falls into the black list along with the borrower. A clause is entered into the contract at which its data are transmitted to the credit bureau. Therefore, if the borrower violates the terms of the transaction, he will spoil the reputation not only of himself, but also of his guarantor. But that is not all. The guarantor will not be able to issue even a small loan at the bank, while he acts as a guarantor.
Renouncement
A guarantee is a one-way obligation. According to Art. 364 of the Civil Code of the Russian Federation, the guarantor may object to the submitted claims, but he has no right to refuse them independently. Claims can be made to the creditor if the term of use of the funds is violated, the borrower received less money. A transaction can be declared invalid only in court.
After the surety responded for all the obligations of the debtor, he receives documents on the basis of which he can present a regressive lawsuit. If the guarantor has fulfilled the obligation satisfied by the borrower, he can recover funds from the bank (Article 366 of the Civil Code of the Russian Federation).
Disclaimer
The guarantee of an individual shall be stopped if:
- the obligation is fulfilled;
- the contract was amended to increase the responsibility of the guarantor, which was not agreed with him;
- the debt was transferred to a third party for which the surety does not want to answer;
- the creditor refused to make claims;
- the debtor is dead;
- the term of the guarantee has expired. The contract period of its validity may not be specified. Then the obligations are terminated 12 months after the moment of their fulfillment, if during this period the bank has not sued the guarantor. There may be another situation. There is no possibility to set the deadline for the fulfillment of the main obligation, and no clear dates are specified in the contract. Then the guarantee will be stopped after 2 years from the date of signing the contract, if during this time a lawsuit is not filed;
- loan agreement is declared invalid. According to Art. 329 of the Civil Code, the guarantee is in the nature of an accessory obligation, that is, it cannot exist separately from the main one. If the court recognizes that the borrower owes nothing to the bank, then it is also impossible to present any claims to the guarantor.
Separately, it is worth discussing the issue of inheritance. According to the interpretation of the Supreme Court of the Russian Federation, the heir must be liable for the obligations of the deceased guarantor to the credit institution only to the extent of the value of the property received. The rest of the debt is not enforceable. If the heir generally refuses to take over his rights, then the deceased's debts do not extend to him.
Kinds
Personal loan guarantee is banking and property. Their main difference lies in the fact that in the second case a specific subject of pledge is prescribed in the contract. In turn, the bank can provide borrowed funds without a preliminary analysis of the solvency of the client. But this option is most often used when issuing an express loan to a legal entity. But if a mortgage is being issued, or it is a question of buying a car, the lender will carefully check the financial condition of the guarantors. There may be several of them. Most often in this capacity are relatives or close friends of the borrower.
A guarantee, security or guarantee may also be required for a small loan amount if:
- the client does not have enough income to cover the amount of debt;
- the borrower had problems with repayment in the past;
- the client already has loan obligations.
A guarantee is a “insurance” of a bank against a bad borrower. Therefore, only a person can apply for this place, whose income level will be sufficient to cover the main debt and interest on the loan.
Guarantor Rights
- To raise objections to the requirements of the bank if it has violated the terms of the contract, for example, made changes without the consent of the guarantor.
- Take away the right to demand compensation from the main borrower if the debt has been repaid by the guarantor. This operation is executed in the assignment agreement. The bank is obliged to provide documents that confirm that the debt was repaid by the guarantor.
- Demand a refund from the main debtor, taking into account interest, penalties, legal costs, as well as compensation for moral damage (Article 365 of the Civil Code of the Russian Federation).
Conclusion
A guarantee is a way of securing obligations, according to which a third party agrees to repay part or all of the debt to the lender if the borrower cannot do it on his own. Most often, the need for this service arises when applying for a mortgage or car loan. A person who acts as a guarantor for a transaction must be very sober about his financial situation. Unilaterally refuse to fulfill obligations will not work.