With distribution of such banking service as consumer crediting, strongly was included into our life the concept "guarantee". It appeared that there are many people ready to go to bank and to be charged for friends and relatives, for colleagues and neighbors, eventually, for simply "the good person". And after all consequences of such responsiveness can be quite notable for a pocket of the guarantor, and quite often it appears for it a bolt from the blue...
Concept of the contract of guarantee and its form
To bail someone, i.e. to be charged that "ward" will behave "properly" – the act intuitively clear practically to each adult. Its household treatment in case the trust was not justified by "ward", assumes for the guarantor, as a rule, only reputation risks that can confuse in attempt to comprehend legal value of this phenomenon.
Meanwhile the guarantee in legal understanding of this term (its civil option) is one of types of providing the obligation which essence is reduced to that the person who wished to act as the guarantor, undertakes to fulfill the obligation for that person for whom it is entrusted, in case of non-execution of the obligation by the last.
Here is how formulates concept of the contract of guarantee of the Civil Code of the Russian Federation: according to the contract of guarantee the guarantor undertakes to answer to the creditor of other person for execution of its obligation by the last completely or in part (p.1 to Art. 361). And adds to Art. 363 that at non-execution or inadequate execution by the debtor of the obligation provided with the guarantee the guarantor and the debtor answer to the creditor in common.
Thus, as a result of the conclusion of the contract of guarantee the creditor has as if a "safety" debtor to whom at emergence of problems with the main debtor it is possible to address with the requirement about execution of the obligation. In relation to providing with the guarantee the obligation based on the contract of consumer crediting (and further under the main obligation it will be assumed), it will mean that in case of, for example, failure of the face which took the credit in bank, of its return "to pay the bill" it is necessary to the guarantor of the unfair debtor if to it from bank the relevant requirement arrives.
The contract of guarantee has to be signed in writing, thus non-compliance with this requirement attracts its invalidity – the oral arrangement on the guarantee of validity will not have (Art. 362 of the Civil Code of the Russian Federation). Just in connection with the requirement to a form of the contract the practice of "the telephone guarantee" which appeared recently which is that at issuance of credit the employee of bank asks to report phone number of the person who could confirm reliability of the borrower should not betray excessive value, and calls that for clarification of information necessary to it. Irrespective of the content of telephone conversation of legal value it will not have.
Vicarious liability limits
For the potential or real guarantor, perhaps, the most interesting question – limits of its responsibility and its ratio with responsibility of the main debtor in case the last does not meet his expectations. In other words, it is important to guarantor to understand, under what conditions and how many he should pay and as the amount of debt will be distributed (and whether it will be distributed in general) between him and the main debtor.
The Civil Code of the Russian Federation answers these questions as follows (Art. 363):
- for occurrence of vicarious liability of rather simple non-execution (inadequate execution) of the obligation by the main debtor. That is, as soon as, for example, from "ward" the next payment on account of repayment of a debt will not arrive, the bank will have the right to address with the relevant requirement to the guarantor, thus even without finding out why the main debtor suddenly stopped "paying bills", and without making attempts to recover a debt from it. In terms of civil law such responsibility of the debtor and guarantor is called solidary. At a joint liability of several persons the creditor can address with the requirement about execution of the obligation both to all of them at once, and to any of them separately;
- the guarantor answers in the same volume, as the main debtor. That is the bank will have the right to demand from the guarantor the credit sum, percent which ran for it, the sum of various sanctions and the commissions, practically always provided by the credit agreement, and even the sum of losses which can arise due to the need of collection of debt in a judicial proceeding (for example, the sum of the state duty paid by bank at an appeal to the court with the claim to the guarantor).
Thus, the situation when the guarantor can appear the only respondent in the case of collecting debt on the credit agreement as a result of which consideration the debt of his "ward" will be in full recovered from it is quite possible. Of course, it is the most gloomy deal for the guarantor – usually respondents both debtors, the main and "safety" appear in court, and the amount of debt is collected from them in certain parts, but also succession of events according to the most adverse scenario for the guarantor in real life too big rarity is not.
Provisions of the Civil Code of the Russian Federation about the volume of responsibility and its solidary character can be changed by the agreement of the parties in the best party for the guarantor. For example, in the contract the firm sum within which the guarantor and undertakes to answer whichever there was a size of a principal debt can be determined. But it is necessary to understand that in a case with consumer crediting terms of the contract of the guarantee are dictated by bank, and disagreement with them other party most often leads not to initialization of negotiation process, and to need of search of the new person ready to act as the guarantor.
The law is severe, but is not blood-thirsty, and it after all provides "a honey spoon" for the guarantor: in case of repayment of a debt according to the credit agreement the guarantor becomes the creditor of the main debtor and has the right to collect from that the paid amount of debt, that is as if takes up a place of bank. However, when former "ward" is insolvent, transformation in the creditor can be for the guarantor only cold comfort.
Bases of termination of the contract of the guarantee
Perhaps, the most preferable to all the basis of the termination of the guarantee is appropriate execution of the obligation by the main debtor. That is, if the credit is returned and the bank has no claims to the borrower, the guarantee providing this credit obligation stops irrespective of, for what term the contract of guarantee was signed, – there is no main obligation, there is no guarantee also.
But the guarantee can be stopped and owing to other reasons listed in Art. 367 of the Civil Code of the Russian Federation. Here some of them with explanations concerning their realization in practice:
- the guarantee stops in case of change of the main obligation, uncoordinated to the guarantor attracting increase in vicarious liability.
It is clear that the creditor is interested in saving of the guarantee at change of volume of the main obligation, and to persuade the guarantor on increase in its responsibility after the credit is already issued, very not easy. Therefore many banks resolve this issue beforehand: for example, the condition that the guarantor agrees to possible change of the responsibility in the future is frequent in the contract of guarantee (including on its increase), is included initially that, according to banks, does optional the subsequent address to the guarantor behind the corresponding coordination.
Though legitimacy of such behavior of banks at many guarantors raises doubts, their attempts to recognize it illegal most often remain unsuccessful as many judges (including also judges of Russian Armed Forces) do not find in such formulation of the term of the contract anything illegal. Therefore, signing the contract of guarantee containing a similar condition the guarantor has to understand that the total amount which he perhaps should pay instead of "ward", can appear much more, than that on which he initially counted (for example, in case of increase in the size of interests on credit);
- the guarantee stops when replacing the main debtor, uncoordinated to the guarantor.
As well as in the previous case to give itself a free hand and not to risk the guarantee when replacing the main debtor, the condition that the guarantor agrees to be responsible for any new debtor, as a rule, already contains in the standard contract offered by banks for signing. Taking into account the developed law-enforcement practice this circumstance means including absence at bank of need in addition to agree with the guarantor the new candidacy for a role of the main debtor. Therefore to the person ready to act as the guarantor of the best friend, but not to the person interested to appear suddenly the guarantor of the worst enemy, it is hardly worth signing the contract of guarantee containing a similar condition.
Separately it is necessary to stop on destiny of the guarantee at deaths door of the main debtor: whether is this event the basis for its termination or not. According to the explanations of Russian Armed Forces made to them on this matter if the main debtor has a successor and it accepted inheritance, it also becomes the main debtor within the cost of the hereditary property which passed to it. In turn, if the contract of guarantee contains a condition about a consent of the guarantor to be responsible for any new debtor, the guarantor becomes responsible for execution of the main obligation by the successor. Thus, the guarantee under such circumstances does not stop though the volume of vicarious liability can decrease if at the testator of debts it appeared more, than successors would like that.
Does not stop the guarantee and at deaths door the guarantor if it has a successor and it accepted inheritance. Under such circumstances the successor within the hereditary property which passed to it becomes the guarantor.
- one more basis of the termination of the guarantee is the expiration on which it was given. Thus the term of the contract of guarantee should not be confused to the term of the obligation provided to them that often occurs in practice.
But what to do if the term of the guarantee is not established by the contract? In that case the guarantee will work within a year after date of approach of execution of the main obligation and if the reality and by this date is absent, 2 years from the date of the conclusion of the contract of guarantee. During these (year and biennial) terms the creditor has an opportunity to appeal to court with the claim to the guarantor if it is not satisfied with execution of the main obligation; on the expiration of these terms the guarantee will stop.