Civil law. Parts I, III and IV. Bank guarantee. Deposit (most important)

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Civil law. Parts I, III and IV. Bank guarantee. Deposit (most important)

Lecture notes, cheat sheets

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60. BANK GUARANTEE. DEPOSIT

Bank guarantee - such a guarantee, in which a credit institution (guarantor) acts as a guarantor. The creditor in a bank guarantee is called the beneficiary, and the debtor is called the principal.

The basis for the emergence of banking guarantees are two legal facts: an agreement between the principal and the guarantor on the provision of a bank guarantee, as well as the issuance of guarantees for a certain period in writing (this is a one-sided transaction).

There are two types of bank guarantees: conditional bank guarantees, giving the beneficiary the right to satisfy the claim only if the latter provides a court decision on the principal’s failure to fulfill his obligation, and unconditional bank guarantees, in the presence of which the guarantor is obliged to fulfill the requirements of the beneficiary without providing the latter with evidence of improper fulfillment by the principal of his obligations.

Features of the bank guarantee:

▪ the bank guarantee does not depend on the main obligation;

▪ the beneficiary's right of claim is not transferred;

▪ the limits of the guarantor's liability to the beneficiary are determined by the amount of money specified in the bank guarantee;

▪ in case of failure by the guarantor to fulfill the obligation to pay the principal's debt, the guarantor may be held liable for unlawful behavior and may be liable with a monetary amount greater than that indicated in the bank guarantee;

▪ the guarantor who has satisfied the beneficiary's claim has the right of recourse against the principal.

Deposit - an amount of money issued by one of the parties to the other party as proof of the conclusion of the contract and ensuring its execution.

The subject of the deposit it can only be money. The form of the deposit agreement must be in writing.

Deposit functions: security, payment and certification.

Deposit features:

▪ the party that gave the deposit, if it fails to fulfill the contract, loses it, and the party that received the deposit and failed to fulfill the obligation must pay double the amount if it is responsible for the failure to fulfill the obligation;

▪ the deposit is returned in the amount of money received in two cases: upon termination of the obligation before the start of its execution by agreement of the parties, as well as upon impossibility of fulfilling the obligation;

▪ the amount of the deposit is issued against future payments under the main contract, therefore, upon its execution, the deposit is withheld.

The difference between a deposit and an advance is that the advance is not characterized by a security function: the party that issued the advance has the right to demand its return in all cases of non-performance or improper performance, with the exception of cases provided for by law or the contract.

Therefore, when concluding an agreement, which assumes a preliminary payment on account of the main payment under the agreement, it is necessary to immediately indicate what, in advance or as a deposit, this payment is. And if the contract does not indicate that the amount of the prepayment is a deposit, then such an amount will automatically be considered an advance.

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