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 have a license for 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:

1. Guarantee.
2. Beneficiary.
3. Principal.

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:

1. It takes 5 working days to review the requirements.
2. 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.

Classification

Types of independent guarantees are as follows:

• Guarantee of obligations under the tender.
• Ensuring performance obligations.
• Securing obligations upon refund.

When concluding this type of transaction, the general conditions for concluding an agreement are complied with without fail:

• The impossibility of changing the conditions unilaterally.
• Ban on review.
• Be considered invalid without the consent of all parties.

The lender has the right to delegate hisstatus, if provided by the contract. This point is important to coordinate with the guarantor, having received from him the consent. In addition, the assignment of the underlying obligation usually entails the assignment of all rights.

Moreover, if the contract has an indescribable status, the rights of the beneficiary remain with him in any case, even with the consent of the guarantor.

Reasonable refusal

The beneficiary has the right to refuse to deposit funds (not to fulfill obligations) in the following cases:

1. Requirements do not comply with contractual obligations.
2. Presented papers do not comply with proper standards, rules of registration, proper content.
3. The deadline for issuing papers has expired.

In this case, the legislator provides for the possibility of extending the period to 7 days in the following cases:

• Having doubts about the authenticity of the proposed documents.
• Not come the terms of the contract.
• Fulfillment of obligations by the principal.
• Commitments have lost their effect.

In the case when doubts are not confirmed,the guarantor undertakes to fulfill all the conditions under the contract. In the case of receipt of the claim by the guarantor from the lender, the first is obliged to notify the principal of this in the near future.

Warranty Termination

The opportunity granted 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 lender refused all requirements.
• The lender in writing freed the debtor from the performance of duties.

This issue is governed by Art. 378 of the Civil Code. 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 and borrowings.