The field of civil law is undergoing more and more changes every year, especially in the field of banking. New forms of lending, terms of the agreement, the possibility of guarantee, as well as related benefits appear. Recently, a new concept has appeared in the Civil Code of the Russian Federation called “independent guarantee”.
Form and content
An independent guarantee as a way to ensure the fulfillment of obligations is an obligation to pay the amount strictly defined by the contract, regardless of whether the guarantor fulfills the obligation to pay.
The Civil Code of the Russian Federation states that this type of guarantee is executed in writing. In addition, there are mandatory essential points of the document: loan conditions and services. Mandatory written act must be certified by the parties, including third parties. All the nuances of this issue are reflected in Art. 368 of the Civil Code of the Russian Federation.
Issuing process
Current civil law suggests that an independent guarantee can only be issued by a bank or a lending organization, which will be the guarantor. The law refers to a list of persons who are entitled to secure payment:
- Banks and banking organizations of any type that are licensed to carry out financial activities.
- Credit organizations, for example, issuing short-term loans.
- Commercial legal entities that, in the prescribed manner, are authorized to issue a guarantee.
The described financial procedure is in the nature of a one-way transaction. An independent guarantee as a way of securing obligations can be implemented in the contract at the request of the guaranteeing party. These actions give rise to legally binding requirements for the fulfillment of the relevant obligations arising from the provisions of the contract.
About signs of an independent guarantee
The main feature due to which this type of guarantee can be identified is its independence from the main obligation imposed by the credit institution. The main difference is expressed in the following features:
- An independent guarantee does not expire depending on the performance of debt obligations. Moreover, during the period paid, it does not undergo any changes.
- The invalidity of the obligation does not entail the invalidity of the guarantee.
- There is a flip side to the coin. The repeated appeal of the beneficiary does not yet guarantee the right to receive the type of guarantee in question. Moreover, full or partial fulfillment of contractual obligations is not a guarantee of its receipt.
- An independent bank guarantee does not interact with the contractor in any way. Any claims or objections raised by the debtor are not reflected in the contract.
The subjects of legal relations
The widest area of financial law includes a huge range of entities. Thus, an independent guarantee as a way to ensure the fulfillment of obligations concerns the following persons:
- Guarantor.
- Beneficiary
- Principal.
Each of the parties to the contract is important. So, the guarantor provides all the necessary conditions for issuing an independent guarantee. The second side receives it in order to provide the third party, which is in dire need of it. The meaning of this turnover is to provide the debtor with the opportunity to secure the loan amount, and the lending organization to be confident in fulfilling obligations in any way.
More about conditions
An independent guarantee is one of the types of transactions, even if it is one-sided. A loan agreement may indicate on securing a loan not only in monetary terms, but also in stocks, bonds, checks, as well as other items indicating individualizing characteristics.
The most fully independent guarantee, the form of which is defined in Art. 368 of the Civil Code of the Russian Federation, is reflected in that document, which spells out the basic conditions, paragraphs, provisions. The full list of required contract names is as follows:
- Details of the parties. Full names of organizations are necessary in order to identify the parties. The addresses of the dominant company and branch, if any, and participate in the transaction, are important here.
- The calculation procedure will help determine the level of debt, 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 onset of exceptional circumstances, as a result of which the amount of debt can be reduced or increased. It is necessary to indicate specific situations, as well as determine the amount of cash: compensation or fines.
- The term of the contract, as well as a list of legal facts, due to which it is possible to terminate.
- Date of conclusion and signature of the parties.
About amounts and calculations
An independent guarantee, which is provided on the terms of a third company, must not contradict the general terms of the loan agreement, which is signed between the principal and the beneficiary.
Legal regulation of this issue is reflected in Art. 377 of the 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-compliance with the calculations established by the contract, penalty interest may be accrued to the debtor. In this case, a normative document may provide for exceptional cases.
Art. 314 of the Civil Code of the Russian Federation establishes certain periods:
- 5 business days are provided for consideration of requirements.
- An independent guarantee agreement may provide for the possibility of extending the period by a month, but no more.
In case of untimely settlements, the guarantor bears full liability in accordance with Art. 395 of the Civil Code of the Russian Federation.
Classification
The types of independent warranty are as follows:
- Securing Tender Obligations.
- Securing performance obligations.
- Securing liabilities for a refund.
When concluding this type of transaction, the general conditions for concluding a contract are observed without fail:
- Inability to change conditions unilaterally.
- Ban on recall.
- To be considered invalid without the agreement of all parties.
The creditor has the right to delegate his status, if this is provided for by the contract. It is important to coordinate this moment with the guarantor, having obtained consent from him. In addition, the assignment of a primary obligation, as a rule, entails the assignment of all rights.
Moreover, if the agreement has an inexpressible status, the rights of the beneficiary remain with him in any case, even with the consent of the guarantor.
Substantiated refusal
The beneficiary has the right to refuse to deposit funds (not to fulfill obligations) in the following cases:
- The requirements are not consistent with contractual obligations.
- Presented papers do not comply with due standards, rules of execution, proper content.
- The deadline for submission of securities was overdue.
In this case, the legislator provides for the possibility of extending the term to 7 days in the following cases:
- There are doubts about the authenticity of the proposed documents.
- The terms of the contract did not come.
- Fulfillment of the obligation by the principal.
- The undertaken obligations have lost their effect.
In the event that doubts are not confirmed, the surety agrees to fulfill all the conditions of the contract. If the guarantor receives the claim from the creditor, the first is obliged to notify the principal in the near future.
Warranty Termination
The opportunity provided by the guarantor loses legal force in the following cases:
- Expiration of the contract.
- The loan amount is paid by the debtor in full.
- The creditor refused all the requirements.
- The creditor in writing relieved the debtor of his duties.
This issue is regulated by Art. 378 of the Civil Code of the Russian Federation. In the event of termination of the independent guarantee, the guarantor is obliged to notify the debtor of this. This opportunity allows you to expand the scope of credit and banking organizations, and citizens, in turn, open up new opportunities for obtaining loans.