In modern civil-legal turnover, the use of a suretyship agreement as one of the mechanisms for ensuring the debtor's obligations to the creditor, provided by law, is common and occurs mostly in entrepreneurial relations, in particular in the relationships of companies or in the bank crediting of entrepreneurs. However, the guarantee takes place also with consumer or mortgage lending to individuals. Guarantors can be legal entities and individuals, while the property position of the latter in my opinion is exposed to greater risks than the position of legal entities.
The legal consequences of the conclusion of the surety agreement, whether the individual or the legal entity acts as a guarantor, depends on the terms of the contract agreed upon by the parties, in particular: the form of liability (joint or subsidiary); the extent of the guarantor's liability (securing the main obligation in full or only in part); consent of the guarantor when the debtor changes the main obligation to be responsible for it on the changed terms and limits of the guarantor's liability; the guarantor's awareness of the debtor's objections to the creditor on the secured obligation or the existence of counterclaims from the debtor that could be set against.
The order of presentation of the claims by the creditor to the guarantor, depending on the form of his responsibility. Scope of the guarantor's liability.
The joint responsibility of the guarantor is assumed by a general rule, if the law or the contract of guarantee does not provide for subsidiary liability of the guarantor (clause 1, article 363 of the Civil Code of the Russian Federation).
If the guarantor is jointly and severally liable with the debtor, the creditor has the right to bring claims simultaneously to the debtor and the guarantor; only to the debtor or only to the surety. The creditor is required to provide the guarantor with sufficient evidence of failure to perform or improper performance of the secured obligation, and the creditor is not obliged to prove that he made attempts to obtain execution from the debtor (in particular, he sent a claim to the debtor, sued, etc.)
In the case of a subsidiary nature of the guarantor's liability (Article 399 of the Civil Code), it is sufficient to prove to the creditor that the debtor refused to fulfill the obligation, secured by the guarantee or failed to respond within a reasonable time to the offer to fulfill the obligation (paragraph 35 of the Resolution of the Plenum of the Russian Federation Supreme Arbitration Court No. 42 of 12.07.2012.).
Regardless of the responsibility of the guarantor (joint or subsidiary), the creditor has no right to demand satisfaction of his claim against the guarantor provided that his claim to the debtor can be satisfied by offsetting or indisputable collection of funds from the main debtor (clause 2, article 399 of the Civil Code of the Russian Federation).
This circumstance can also be put forward by the guarantor as an objection to the claims of the creditor.
When concluding a guarantee agreement, it is necessary to clearly understand and prescribe in the contract: the amount of the guarantor's obligations that it provides, in particular: the principal amount of the secured debt or including the debtor's payment of interest on the debt, the amount of the obligations in the form of a fixed sum of money; to pay attention to a possible change in the debtor's obligations, in particular to agree or disagree if the debtor's obligations are changed to the lender on changed terms, which should be clearly expressed and should include limits on the change in the obligation (for example, the amount of money or interest that can be respectively, the amount of debt and interest thereon, the period for which the deadline for the performance of the secured obligation, etc., may be extended or shortened); agree or disagree with the responsibility for the new debtor in the case of transferring the debt to another person (the new debtor).
The validity of the guarantee and when it is terminated. When the creditor has the right to demand performance from the guarantor. Rights of the guarantor of the debtor.
The contract of guarantee must be provided for the period for which it is given, after expiration of which the guarantee is terminated. If such a term is not established, it shall be terminated if within a year from the date of maturity, secured by the suretyship of the obligation, the creditor does not file a claim against the guarantor.
The presentation by a creditor of a claim to a guarantor is possible only in case of failure or improper performance by the debtor of the secured obligation.
The guarantor, who fulfilled the obligation for the debtor, passes the creditor's rights under this obligation, to the extent that the guarantor has satisfied the creditor's claim, including during the enforcement proceedings.
It should be noted that the pledgee's rights to the pledgee also pass to the guarantor as with a pledge established by a third party to ensure the fulfillment of the obligations of the debtor, as well as with the pledge imposed by the debtor on its own obligations, which provides a substantial protection of the interests of such a guarantor.
The Guarantor also has the right to demand payment of interest from the debtor for the amount paid to the creditor and reimbursement of other losses incurred in connection with the liability for the debtor.
The guarantor in fulfillment of its obligations under the guarantee agreement has the right to grant the creditor the compensation (property, work, services, property rights), and in the event that the guarantor has homogeneous claims to the creditor, the guarantor has the right to offset the counter claims.
The creditor who has received performance from the guarantor for the debtor is obliged to give him the documents certifying the claim to the debtor and to transfer the rights providing this claim.
If the guarantor is an individual.
The consent of the spouse of the guarantor - an individual for conclusion of a contract of guarantee is not required.
As it was stated, in case of non-performance or improper performance of the secured obligation by the debtor, the creditor has the right to demand performance from the guarantor, however, in the absence of funds in the surety's settlement accounts, the creditor, after obtaining an appropriate decision and applying to the bailiff's service, has the right to foreclose on the share of the spouse in jointly acquired property.
In addition, in the event of default of the guarantor's obligations, the amount of which is 500,000 rubles or more, the creditor has the right to apply to the court with a petition for recognizing the guarantor-citizen bankrupt, since the provisions of the Federal Law of October 26, № 127 "On insolvency (bankruptcy)" extends its effect on the relationship associated with the contract of guarantee.
In case of initiating the bankruptcy procedure of the guarantor-citizen, the following procedures may be applied: debt restructuring, i.e. drawing up and approval of the plan of repayment of the guarantor's debt by installments; Realization of property of the citizen, i.е. sale of property and the direction of the proceeds to pay the guarantor's debt to the creditor (creditors); conclusion of a settlement agreement.
In case of recognition of a citizen as a bankrupt, the property belonging to him shall be sold. The money received from the sale of property is sent to repay the creditor's claims.
The court also has the right to issue a ruling on the temporary restriction of the right to leave a citizen who is declared bankrupt outside the Russian Federation.
In addition, the heirs of the guarantor who accepted the inheritance (part of the inheritance) are liable for the debts of the testator. The amount of this responsibility is determined by the amount of the inherited property of the testator. The creditor's claims do not apply to the personal property of the heirs.
If the guarantor is a juridical person.
With regard to the guarantor - a juridical person (joint-stock company or limited liability company), the guarantee does not apply to transactions, which are made in the ordinary activity of the company`s business (Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 13, 2001 № 62 "Review of the practice of resolving disputes related to the conclusion economic companies of large transactions and transactions in which there is an interest ").
In case of providing a guarantee by the company, the amount of obligations is 25 or more percent of the book value of the guarantor's assets. It is necessary to have the transaction approved if both the transaction for the company is large, and if the transaction for the company is an interested party transaction (art. 46).
This is justified by the provisions of Federal Law № 14-FL of 08.02.1998 "On Limited Liability Companies" (Articles 45, 46) and Federal Law № 208-FL of December 26, 1995 "On Joint Stock Companies" (hereinafter - the Law on Joint Stock Companies) (Articles 78, 81).
In case that the guarantor company does not have an approval for a major transaction or an interested party transaction, the surety agreement may be declared invalid by the transaction (Decree of the Presidium of the Supreme Court Russian Federation on 12.04.2011 in case № A45-27982 / 2009, 02.11.2010 in case № A56 -35901/2009, Definitions of the Supreme Arbitration Court of the Russian Federation of 07.02.2013 in the case № A40-151438 / 09-132-974, as of 14.12.2011 in the case № A40-42578 / 09-47-263).
Surety in bankruptcy cases.
If, after the creditor has presented a claim to the debtor, the guarantor has executed the suretyship agreement, the guarantor has the right to apply to the court with an application to enter the case as a successor to the creditor at the request for recovery of the debt under the secured obligation, interest payment, etc. (Part 1, Article 48 of the agrarian and industrial complex of the Russian Federation, item 8 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 42).
If the guarantors apply to a court with an independent claim against the debtor, the claim shall be left without consideration.
The debtor, who has fulfilled the obligation, secured by the surety, is obligated to immediately notify the guarantor about this. Otherwise, the guarantor, who has fulfilled the obligation to the creditor, at his choice has the right to present a recourse claim to the debtor or recover from the creditor unjustifiably received.
The requirement for a guarantor may be established in the bankruptcy case of the guarantor, but only on condition that the debtor under the obligation secured by the guarantee committed a breach of this obligation (paragraph 1 of Article 363 of the Civil Code of the Russian Federation) (for example, when the principal debtor is declared bankrupt, Item 1 of Article 126 of the Federal Law No. 127-FZ "On Insolvency (Bankruptcy)" of October 26, 2002, from the date of its recognition as a bankrupt, the term for the performance of its obligations is considered to have come).
Pledge or guarantee: distinction and legal features.
A pledge, like a surety, is one of the ways to ensure the fulfillment of the obligations of the debtor.
The mortgagor can be, as the debtor himself, and the third person who is the owner of any property of value and has provided this property as collateral against the debtor's obligations to the creditor.
In case that the mortgagor is a third party, then such a mortgagor has rights similar to the rights of a surety under Art. 364-367 of the Civil Code of the Russian Federation, in particular:
the pledgor has the right to raise objections to creditor claims that are available to the debtor, but are put forward to them; the pledgor has the right not to fulfill his obligation while the creditor has the opportunity to receive satisfaction of his claim by offsetting it against the debtor's demand;
- in case of satisfaction of the creditor's claims from the pledged property, the pledgor shall have the right to demand from the debtor the reimbursement of the value of this pledged property, as well as the payment of interest on the amount paid to the creditor and reimbursement of other losses incurred in connection with the liability for the debtor;
- the creditor, who has received execution from the pledgor for the debtor, is obliged to hand over to him the documents, certifying the claim to the debtor, and to transfer the rights providing this demand;
- in fulfillment of its obligations, the mortgagor is also entitled to provide the lender with the compensation (property, work, services, property rights).
There is no conceptual difference between the pledge and surety, but most of all the difference between the specified contracts is that the pledgor - the third person answers only within the value of the pledged thing, the guarantor also answers with all his property on the basis of the agreed amount of his responsibility for the secured obligation of the debtor.
In my opinion, if a third person has a firm intention to ensure the fulfillment of the obligations of a certain debtor, but it is not in force also to firmly predict the negative financial consequences associated with bail or agree on favorable terms of guarantee, is not ready financially and morally to bear such risks or at all risks the latter property (although sufficient to secure the obligations of the debtor), it is quite an acceptable option for a third person to be not a surety, but the pledging of a creditor Defined property provided to the lender the value in the substantive sense.
Obviously, the risk for a third person acting as a pledgor in the amount of the value of the pledged property is clearly more profitable than the risk with all of its property status for a third person acting as a guarantor.
In addition, in case of non-fulfillment or improper fulfillment of obligations by the principal debtor, and afterwards and as a guarantor, the creditor has a mechanism for a significant complication in the life of such guarantor (regardless of whether the guarantor acts as a legal or natural person), by applying the creditor to declaring the guarantor bankrupt presence of debt, in the amount of 500 000 rubles and more).
At the same time, in a similar situation, but in the presence of security in the form of a pledge, and not surety, the creditor will have nothing to do but to foreclose on the subject of the pledge, while the property and social status of the mortgagor (third party) will remain untouched.
Materials were taken from “Pro business”
