Contract law. Hold. surety Bank guarantee (most important)

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Contract law. Hold. surety Bank guarantee (most important)

Lecture notes, cheat sheets

Directory / Lecture notes, cheat sheets

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19. HOLD. GUARANTEE. BANK GUARANTEE

Unlike other interim measures, withholding arises by virtue of the norms of the law.

Subject to retention there can be any things not withdrawn from circulation, including money. Withholding is allowed if the debtor fails to fulfill the obligation to pay for the thing, reimburse the costs associated with it and other losses on time.

Creditor retaining the thing must ensure its safety. and bears responsibility in case of its death (damage) according to the general norms of civil law. If the retention of the thing does not lead to the fulfillment of the creditor's claim, this claim is satisfied in the amount and in the manner provided for the pledge relations (Article 360 of the Civil Code of the Russian Federation), i.e., the court, at the claim of the creditor, levies execution on the retained thing.

Contract of agency under pain of its invalidity must be made in writing and may take the form of an independent agreement between the guarantor and the creditor or be a condition included in the agreement between the creditor and the debtor. In this second case, the contract must also be signed by the guarantor.

The subject of the guarantee there may be any obligations, including obligations that will arise in the future (Article 361 of the Civil Code of the Russian Federation).

However, the guarantor is responsible for the performance of the obligation only in cash. Claims for real performance, elimination of deficiencies, performance of actions cannot be presented to the guarantor.

The surety and the debtor are jointly and severally liable to the creditor, unless the law or the contract provides for subsidiary liability of the surety (Clause 1, Article 363 of the Civil Code of the Russian Federation). Vicarious liability is rarely used because it is less favorable for the creditor.

The guarantor is liable to the same extent as the debtor, including, in addition to the main debt of the debtor, the payment of interest, reimbursement of court costs for the collection of debt from the debtor and other losses of the creditor (clause 2 of article 363 of the Civil Code of the Russian Federation).

Differences between a bank guarantee and a guarantee:

1) a bank guarantee is not a contract, but a unilateral and unconditional obligation of the guarantor to the creditor (beneficiary) to pay, subject to the conditions of the guarantee, the amount of money named in it;

2) the obligation to the beneficiary stipulated by the bank guarantee does not depend in relations between them on the main obligation for which the guarantee was issued, even if it contains a reference to this obligation;

3) the obligation to pay under the guarantee, if the formal conditions of the guarantee are met by the beneficiary, is unconditional.

Author: Rezepova V.E.

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