Deposit guarantee

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With the advance payment guarantee (or payment bond ; English advance payment bond, deposit bond , French garantie des Dépôts ) takes over the issuing surety or guarantee the liability for repayment of any payments or advance payments of the buyer / customer / importer of a contract , for example, a contract of sale or Contract for work with a seller / contractor / exporter .

General

For sales contracts, for example, the mutual need primary obligations , namely the transfer of the goods by the seller together with their assignment and the payment of the purchase price by the purchaser together with the acquisition of the purchased goods train to train done ( § 433 BGB ). If the contractual handover / transfer of ownership of the object of sale occurs, the seller has fulfilled his main obligation; this also applies to the simultaneous payment of the purchase price / acceptance by the buyer. There is no financial risk for both contracting parties due to the “step by step” service . However by virtue of payment , a deposit or advance payment before delivery to be made by the buyer, created for this one delivery risk (it grants supplier credit ). There is a risk that the seller will not deliver or not deliver in full, although he has received a deposit / prepayment.

This financial risk can be covered by third parties (especially credit institutes , insurers ) in the form of a down payment guarantee. The creditworthiness of the credit institutes / insurers should give the buyer the opportunity to fall back on them if the seller cannot fulfill the contract.

Legal issues

The deposit guarantee / guarantee is a sub-form of guarantee or warranty . The former is regulated in § 765 ff. BGB, which applies to the deposit guarantee. The guarantee replaces the surety in international credit transactions , but is not regulated in the BGB, but permissible according to § § 311 Paragraph 1 BGB, § 241 Paragraph 1 BGB. The BGB provisions on the guarantee cannot be applied analogously to the guarantee; rather, the rest of the law of obligations applies analogously . The guarantor unilaterally undertakes in the informal guarantee contract to either take responsibility for future damage / loss regardless of fault or to accept liability for a specific economic success. In contrast to the guarantee, this is an abstract liability that is assumed independently in addition to the main debt, even if the latter no longer exists for legal reasons. In the case of a guarantee, the guarantor has to position the obligee as if the damage had not occurred or the guaranteed success had occurred. The difference between the two is that the down payment guarantee is no fault- dependent and a down payment guarantee is dependent on the fault of the seller. Regardless of the design as a guarantee or surety, the guarantor / surety ensures in the terms of payment that his liability only begins when the exporter / seller receives the down payment and that his liability is reduced to the extent that deliveries or services have been provided and with the Down payment amount will be offset.

If the terms of payment provide for a deposit / advance payment by the buyer / client / importer on a larger scale, the seller / contractor / exporter can request an advance payment guarantee in the amount of the deposit / advance payment by credit institutes or insurers. Only in a few cases, this guarantee / warranty required by law (so looks like § 651t BGB a legally binding assurance of deposit for vacation packages before, which in the form of a guarantee certificate - travel insurance certificate - happens).

Credit institutions issue advance payment guarantees as part of the guarantee credit , insurers as part of the deposit insurance . The guarantee credit is banking within the meaning of Section 1 (1) No. 8 KWG , while the deposit insurance is insurance for the account of a third party in accordance with Section 43 VVG . According to the legal definition of Section 43 (1) VVG, the policyholder can conclude an insurance contract in his own name for someone else. The “other” is the beneficiary from the surety / guarantee, to whom the rights from the insurance contract are entitled ( Section 44 (1) VVG) but are overlaid by the legal relationship from the guarantee / surety.

The guarantors can make a condition in their guarantee that it only becomes effective when the down payment has been received by the seller / contractor / exporter. In the case of the guarantee, this clause is unnecessary because of the accessory nature.

species

In the case of down payments in connection with the acquisition or construction of residential buildings, the consumer, as buyer or builder , can be contractually obliged to make certain down payments. The MaBV sees in § 3 MaBV total of 12 by the progress related payments before that the client has to pay. For this he can demand security in the form of a deposit guarantee that protects him against any repayment claims against the entrepreneur. In Section 632a of the German Civil Code (BGB) it is assumed that these installments must be offset by an increase in value. Paragraph 4 of this provision expressly mentions collateral in the form of a guarantee or a promise to pay from a credit institution or credit insurance . According to Section 648a of the German Civil Code ( BGB ), contractors for construction services are obliged to provide the contractor with security . The security deposit in the amount of 10% of the construction sum can be provided in accordance with Section 648a (2) of the German Civil Code (BGB) by means of a guarantee from a domestic credit institution or a deposit insurance.

A frequent application of the advance payment guarantee is the travel security certificate , which is to be issued by the security provider (credit institute, insurer) in accordance with Section 651r (2) BGB for package tours and which must be presented to the traveler in the event of advance payments or advance payments in accordance with Section 651t BGB. The travel insurance certificate, a deposit guarantee or advance payment guarantee and covers the traveler that in particular the risk of insolvency of the tour operator from.

Legal consequences

The guarantee case / surety case occurs in the case of advance payment guarantees / guarantees if the supplier (seller) from the guaranteed / guaranteed contract does not or not completely fulfill the delivery owed by him. The buyer may only request the amount of the guarantee if the main secured liability exists and the security event agreed or assumed by the contracting parties has occurred. Then the buyer only has to assert what was the payment condition of the guarantee (so-called formal guarantee case ). In addition, the buyer must prove the conclusiveness of the main claim - except in the case of a surety / guarantee on first request (so-called material guarantee case ). In doing so, he has to prove that the claim secured by the surety / guarantee is due. If the prerequisites are met, the buyer may use the credit institute or the insurance from the down payment guarantee / guarantee for cash payment.

Then the bank or the insurance company from the surety / guarantee is obliged to make payment. With the payment of the guarantee in accordance with § 774 Paragraph 1 BGB, the buyer's claim against the supplier is transferred to the surety by virtue of law ( legal session ); the guarantee is based on a claim for reimbursement of expenses from § 670 BGB.

International

In international credit transactions, in particular, there are a large number of guarantees that serve to secure mutual obligations from a contract. In international credit transactions, the advance payment guarantee is known to some extent, but the advance payment guarantee is usually preferred. In Switzerland , the guarantee is regulated in Art. 492–512 OR and is ancillary according to Art. 492 Para. 2 OR . Austria regulates the guarantee in § § 1344 ff. ABGB .

Individual evidence

  1. BGH NJW 1967, 1020
  2. BGH NJW 1973, 884
  3. BGH WM 1999, 779
  4. BGH NJW 1985, 2941
  5. ^ Siegfried Georg Häberle / Menno Aden, Handbook of letters of credit, debt collection, export documents and bank guarantees , 2000, p. 709
  6. BGH NJW 1984, 2456 , 2457
  7. BGH NJW 1997, 1435
  8. Friedrich Graf von Westphalen / Brigitta Zöchling-Jud (eds.), The bank guarantee in international trade , 2014, §§ 675, 670 BGB, marginal no. 113
  9. ^ Andreas Schlüter, Management and Consulting Contracts , 1987, p. 180