Bank guarantee, Civil Code of the Russian Federation Art. 368: comments

2024 Author: Howard Calhoun | [email protected]. Last modified: 2023-12-17 10:16

Relationships of participants acting in the right field require confidence in each other's good faith. Therefore, if a long and honest relationship has not been developed between them, then it is recommended to guarantee the fulfillment of contractual obligations without fail. And not only the performer, but also the customer of works (services). The world practice has many developed mechanisms for protecting both sides of the business, the guarantee is recognized as the best among them.

It appeared in Russian legislation in 1994, along with the adoption of the first part of the Civil Code (CC).

If official

Articles 368-379 of the 23rd chapter are devoted to the bank guarantee (BG) of the Civil Code of the Russian Federation. The law classifies a guarantee as a form of securing transactions between economic entities. Articles on BG follow the articles regulating bail. The scientific community is still debating whether this guarantee isa separate type of bail.

In addition, reading the first articles surprises with the inconsistency of the concept of “bank guarantee” with the subject composition of the legal relationship that creates it. This is due to the fact that not only a bank, but also an insurance company or a non-bank credit institution can act as a guarantor.

But the profile banking law classifies BG as a purely banking operation. This allows us to conclude that:

• Only licensed institutions can issue such guarantees.
• In respect of other business entities and their officials, whose participation is proven, pen alties provided for by the Criminal Code and the Code of Administrative Offenses may be applied.

Despite the fact that the provisions of the Civil Code of the Russian Federation are considered a priority, a bank guarantee is recognized by judicial practice only for financial organizations licensed by the Central Bank of Russia.

Civil Code clarifies

A bank guarantee (Article 368 of the Civil Code of the Russian Federation) is defined as a specific relationship in the sense of monetary obligations between:

• A guarantor not participating in a transaction secured by BG.
• The beneficiary, who is a creditor under the main agreement, and according to it, assumes obligations to pay a certain amount of money in the event of a claim from the beneficiary (the beneficiary, while legally has the right to demand payment of the specified amount).

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 specified agreement. That is, the obligations given by the guarantor must be necessarily fixed on paper. However, non-observance of this condition cannot entail the invalidity of the transaction. As well as recognition of the arisen debt of the guarantor. For example, a document received by fax or e-mail is not recognized as an obstacle. Moreover, the original is not needed at all to present the rights of the beneficiary (the exception is a guarantee to the bearer).

Bank guarantee terms

Follow from the articles of civil law and must be spelled out in the contract. The beneficiary receives a letter of guarantee, which indicates:

• Each of the parties to the contract (guarantor, beneficiary and principal).
• Subject, (work, service) of the secured obligation.
• Timing.
• Submission order, list of accompanying documents.
• Denomination.
• With a revocable guarantee - the right and order of revocation.
• Conditions for making payment.

According to the Civil Code of the Russian Federation in a bank guarantee, the nominal value cannot be set less than the amount of the contract. The term is determined by mutual agreement of the parties. Particular attention is paid by all parties to the contract to the rules for sending claims, because they must be strictly observed. Under certain circumstances, a separate period for consideration of the request is indicated, otherwise it is considered standard - 7 days.

If the principal considers it necessary to show his solvency, hereflects in the contract a clause guaranteeing payment on demand, without undue evidence. These include, for example, a court ruling 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 claim for payment that will not allow the beneficiary to fulfill all banking conditions and even prove the fact of their fulfillment.

Thus, a bank guarantee (Article 368 of the Civil Code of the Russian Federation indicates this) has many nuances. Therefore, its regulation often occurs through court decisions that clarify certain points missed by the legislator.

Issuance of document

The Civil Code requires a bank guarantee to be issued as 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. The signature of the chief accountant is also mandatory for the guarantee.

A document is issued to the principal according to the act. The latter pays the agreed bank commission, and BG transfers it to the counterparty.

Document execution

According to the Civil Code of the Russian Federation, a bank guarantee is presented for payment to the bank by the beneficiary personally. To avoid disagreements, the procedure for presentation and the list of accompanying documents are prescribed in the contract to the smallest detail.

RussianThe legislation does not provide for the procedure for payment in the event of a first claim. Only on the second demand and subject to notification by the guarantor of the bank about the repayment of some part of his debt. This makes it possible for the bank to refuse the first time, but at the next request, payment must be made unquestioningly.

Having received documents demanding payment, the bank notifies the principal by sending him copies of the documents received.

BG claims can be assigned to a third party, but this is only in the case of a clause prescribed in the contract with a possible assignment. And only at the end of payments to the beneficiary, recourse claims are possible for presentation.

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, for example, it is a government agency or a charitable organization, then the guarantee issued to it goes into the scope of the rules governing the contractual relationship of the guarantee.

These guarantees do not have any special differences, except for three nuances:

• Under certain circumstances, the value of the guarantee may be changed upwards or downwards.
• The guarantor is required to pay the amount specified in the documents, although the guarantee does not determine the exact amount of the transaction (together with interest and debts).
• The guarantee is unconditional (that is,even in court it is impossible to challenge the legitimacy of the demands 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 the appropriate license, no matter what articles of the code he hides behind. It's easier to work with a bank. For his actions are tightly controlled.

In practice

These innovations are actively moving forward in life. There is, for example, a case when the holder of the holding's assets 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 lender can receive not only money, but also a certain percentage of shares.

Grounds for terminating a bank guarantee

Civil Code indicates a limited list of requirements for warranty termination. Each item in 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 reasons:

1. Pay the amount for which the guarantee was issued.
2. End of her term.
3. Return of the guarantee if the beneficiary waives his rights.
4. The same, but subject to a 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 some kind of relationship between the beneficiary and the guarantor, the code obliges the latter to notify in any way aboutfait accompli principal.

Special rules on the termination of the BG also provide for several general grounds for terminating the contract. So, for example, the refusal of the beneficiary from the obligations assumed by a written message about the release of the guarantor from his obligations is qualified by the Civil Code as debt forgiveness. 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 properly performed.

A few more reasons

In addition to the described grounds for terminating the BG, compensation can also serve as a reason, the coincidence of the creditor and the debtor in one person, the offset of a counter uniform claim, the novation of the obligation, and others.

The only exception to the termination of the warranty is the impossibility of performance. And this basis is not applicable to all monetary obligations, including bank ones.

Recourse claim

The Civil Code contains a rule that the guarantor has the right to apply to the principal with a recourse request to return the amounts paid to the beneficiary under the BG. This right is guaranteed by an 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 lawyers write that the situation is possible only if the right to regressive claims is expressly stated in the agreement. Many disagree with this.approval, based on paragraph 1 of Article 379 of the Code. This rule does not regulate the rules according to which the guarantor's right to file a regressive claim arises from an agreement with the latter. It only indicates that the relationship between the guarantor and the principal can be exclusively reimbursable. That is, for the issuance of a guarantee obligation, the principal is obliged to pay a fee to the guarantor. The size and procedure of actions are prescribed in the agreement between the principal and the guarantor.

And from this it follows that the right to file a regressive claim against the principal, which, based on the norms of the Civil Code, has a guarantor who has paid a certain amount under the guarantee to the beneficiary, cannot but take into account the contribution paid to the grant for providing guarantees. Therefore, it is the volume of the recourse claim 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 granting the latter the right to a recourse claim in order to avoid unjustified enrichment of the guarantor at the expense of the principal.