Independent guarantee as a way of ensuring fulfillment of obligations. Independent Bank Guarantee
The sphere of civil law every yearhas undergone ever greater changes, especially in the field of banking. There are new forms of lending, the terms of the contract, the possibility of surety, as well as the concomitant benefits. Recently, the Civil Code of the Russian Federation has introduced a new concept called "independent guarantee".
Form and content
Independent guarantee as a way of ensuringfulfillment of obligations is an obligation to pay the amount determined by the contract, regardless of the performance by the guarantor of the obligations for payment.
The Civil Code of the Russian Federation states that this type of guaranteeis made in writing. In addition, there are mandatory essential points of the document: the conditions for lending and processing of services. The written act must be certified by the parties, including by third parties, without fail. All the nuances of this issue are reflected in art. 368 Civil Code of the Russian Federation.
The issuing process
The current civil legislation saysthat an independent guarantee can only be issued by a bank or a lending institution, which will be the guarantor. The norms of the law name the list of persons who have the right to secure payment:
- Banks and banking organizations of any type that hold a license to conduct financial activities.
- Credit organizations, for example, issuing short-term loans.
- Commercial legal entities that have the authority to issue guarantees in the prescribed manner.
The financial procedure described is of a natureunilateral transaction. An independent guarantee as a way of securing obligations can be realized in a contract at the request of the guarantor. These actions create legally binding requirements for the performance of the relevant obligations arising from the provisions of the treaty.
About the signs of independent bail
The main feature, thanks to which you canto identify this type of guarantee is its independence from the basic obligation imposed by the credit institution. The main difference is expressed in the following signs:
- The independent guarantee does not cease to be effective depending on the performance of the debt obligations. Moreover, during the paid period, it does not undergo any changes.
- The invalidity of the obligation does not entail the invalidity of the guarantee.
- There is also a downside to the coin. Repeated treatment of the beneficiary does not yet provide the right to receive the type of guarantee under consideration. Moreover, full or partial fulfillment of contractual obligations is not a guarantee of its receipt.
- An independent bank guarantee does not interact with the executor in any way. Any claims or objections made by the debtor are not reflected on the terms of the contract.
Subjects of legal relations
The widest area of financial law includes a huge circle of subjects. Thus, an independent guarantee as a way of ensuring fulfillment of obligations concerns the following persons:
Each of the parties to the agreement is of great importance. Thus, the guarantor provides all the necessary conditions for issuing an independent guarantee. The second party receives it for the purpose of providing a third party that is in dire need of it. The meaning of this turnover is to provide the debtor with an opportunity to secure the loan amount, and the crediting organization - to be sure of the fulfillment of obligations in any way.
More about conditions
An independent guarantee is one of the typestransactions, albeit one-sided. The loan agreement can be indicated on securing a loan not only in money terms, but also in shares, bonds, checks, as well as other items with indications of individualizing characteristics.
The most fully independent warranty, formwhich is defined in art. 368 of the Civil Code of the Russian Federation, is reflected in the document, where the main conditions, clauses and provisions are prescribed. The full list of the mandatory names of the contract is as follows:
- Requisites of the parties. Full names of organizations are necessary to identify the parties. The addresses of the main company and the branch are important here, if it exists and participates in the transaction.
- The calculation procedure will help determine the level of debts, payments, and, if necessary, appear in court as evidence.
- Mention of the possibility of transferring the rights of the beneficiary to other persons.
- The amount of credit, its security, as well as the size of periodic payments.
- The advent of exceptional circumstances, inthe result of which the amount of debt can be reduced or increased. It is necessary to point out specific situations, as well as determine the amount of money: compensation or fines.
- The term of the contract, as well as a list of legal facts, due to which it may be terminated.
- Date of conclusion and signature of the parties.
About the amounts and calculations
An independent guarantee that is provided on the terms of a third company must not conflict with the general terms of the loan agreement that is signed between the principal and the beneficiary.
The legal regulation of this issue is reflectedin Art. 377 Civil Code of the Russian Federation. The norm says that the calculation of the loan amount is possible only in accordance with the amount that is determined by the agreement between the creditor and the debtor. In case of non-observance of the calculations established by the agreement, the debtor may be assessed a penalty interest. In this case, the normative document may provide for exceptional cases.
Art. 314 of the Civil Code establishes a certain time:
- It takes 5 working days to review the requirements.
- The contract of an independent guarantee may provide for the possibility of extending the term for a month, but not more.
In case of untimely settlements, the guarantor is fully liable in accordance with Art. 395 Civil Code of the Russian Federation.
Kinds of an independent guarantee are as follows:
- Guarantee of obligations under the tender.
- Ensuring fulfillment obligations.
- Securing obligations when returning the payment.
When concluding this type of transaction, the general conditions for concluding a contract are compulsory:
- Unable to change conditions unilaterally.
- Prohibition of recall.
- Consider invalid without agreement with all parties.
The creditor has the right to delegate hisstatus, if so provided by the contract. It is important to coordinate this with the guarantor, having obtained consent from him. In addition, the assignment of a basic obligation, as a rule, entails the cession of all rights.
In this case, if the contract has an indescribable status, then the beneficiary's rights are reserved for him in any case even with the consent of the guarantor.
The beneficiary has the right to refuse to deposit money (not to perform duties) in the following cases:
- The requirements do not correspond to contractual obligations.
- Presented papers do not comply with due standards, rules of design, proper content.
- The maturity of the securities was overdue.
At the same time, the legislator provides for the possibility of extending the term to 7 days in the following cases:
- The existence of doubts in the authenticity of the proposed documents.
- The terms of the contract did not come.
- Fulfillment of the obligation by the principal.
- Taken obligations have lost their effect.
In the event that the doubts are not confirmed,The guarantor undertakes to fulfill all the terms of the contract. If the claim is received by the guarantor from the creditor, the first is obliged to notify the principal about this in the near future.
Termination of the guarantee
The opportunity given by the guarantor loses legal force in the following cases:
- Expiration of the contract.
- The amount of the loan was paid by the debtor in full.
- The lender refused all the requirements.
- The creditor in writing has released the debtor from the performance of duties.
This issue is regulated by Art. 378 Civil Code of the Russian Federation. In case of termination of the independent guarantee, the guarantor is obliged to notify the debtor about it. The given opportunity allows expanding the scope of credit and banking organizations, and citizens, in turn, open new opportunities for obtaining loans and loans.</ p>>