Bid guarantee

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With the Ausbietungsgarantie (or Ausbietungsbürgschaft , tendering security / Bietbürgschaft ) the certifying takes guarantor or surety to liability towards a creditor of a mortgage , so that when foreclosure no bad debt suffers.

General

The bid guarantee / bid bond is only used in a very specific situation, namely when real estate financed by third parties ends up in the foreclosure auction and a mortgagee is threatened with a bad debt loss due to existing burdens or insufficient market value . It is therefore a frequently used instrument, particularly by credit institutions , to avert defaults in the event of the compulsory realization of mortgages.

species

In the case of the weaker version , the surety / guarantor assumes no obligation to have to submit a bid during the auction . This bid bond / guarantee corresponds in its effect to a default bond . The harder effect exists if the surety / guarantor undertakes to sell the mortgagee, i.e. to submit a bid during the foreclosure sale in the amount of the claim of the obligee . In this case, if there are no further bids, the surety / guarantor must purchase the property himself.

Legal issues

The guarantor / guarantor committed by the hard version in which foreclosure up to the amount a mortgage ( mortgage , mortgage or land charge bid) so that this does not fail due to a low bid. The surety / guarantor must submit a bid by which the real estate lien protected by the guarantee / surety is completely replaced . The hard version of Ausbietungsgarantie / -bürgschaft provides a conditional purchase obligation, which fall under § 311b para. 1 BGB the notarial certification requirements. A formal deficiency due to an obligation to purchase is cured by the acquisition of land in the foreclosure auction and entry in the land register in accordance with Section 311b (1) sentence 2 BGB .

The case law sees the bid guarantee as a sub-form of the guarantee or (in the case of the bid bond) the surety. The latter is regulated in Section 765 ff. BGB, which applies to the bid bond. 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 law of obligations applies analogously .

Credit institutions issue tender bonds as part of the guarantee credit , insurance as part of the surety 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.

For credit institutes, the credit institute accounting regulation stipulates in Section 26 (2) RechKredV that bidding and other guarantee obligations in sub-item letter b "Liabilities from guarantees and warranty contracts" are to be recorded in the balance sheet as contingent liabilities .

Legal consequences

The guarantee case / surety case occurs in the case of bid guarantees / sureties when the foreclosure auction process begins with the delivery of the order resolution ( Section 22 (1) ZVG ). Then the main secured liability arises and the insured event agreed or assumed by the contracting parties has occurred. Then the surety creditor only has to assert what was the payment condition of the surety (so-called formal surety case ). Furthermore, the obligee must prove the conclusiveness of the main claim (so-called material guarantee case ). In doing so, he has to prove that the claim secured by the guarantee is due. If the prerequisites are met, the creditor may claim the credit institution or the insurance from the given offer bond / guarantee for cash payment.

Then the surety / guarantor from the hard version surety / guarantee is obliged to submit a bid in the amount of the mortgage. With the payment of the bid, in the case of the guarantee according to § 774 Paragraph 1 BGB, the claim of the mortgagee 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.

The guarantee case / guarantee case does not arise for the obligee if a highest bid from a third party is submitted in the amount of at least the guaranteed amount.

International

The bid bond is known to some extent in international credit transactions, but the bid bond 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 .

Others

The bid guarantee must not be confused with the bid guarantee .

literature

  • Rayner Jankowski: Foreclosure Auction 24 - Real Estate - Ships - Aircraft Handbook for Bidders . 3. Edition. Rhombos, Berlin 2007, ISBN 978-3-938807-61-3 .

Web links

Individual evidence

  1. ↑ Klaus-Niels Knees, Foreclosure Auction and Forced Administration , 2017, p. 101
  2. ↑ Kurt Stöber , Foreclosure Act , 2016, § 71, margin no. 8.5
  3. ↑ Kurt Stöber, Foreclosure Act , 2016, § 71, margin no. 8.6
  4. ^ Franz Hiebler, The Practice of Granting Loans , 1972, p. 120
  5. ↑ BGH NJW 1990, 1662 , 1663
  6. ↑ BGHZ 85, 245 , 250
  7. ↑ OLG Celle, judgment of January 9, 1991, Az .: 3 U 14/90 = DNotZ 1992, 302
  8. ↑ BGH NJW 1967, 1020
  9. ↑ BGH NJW 1984, 2456 , 2457
  10. ↑ BGH NJW 1997, 1435
  11. ↑ Friedrich Graf von Westphalen / Brigitta Zöchling-Jud (eds.), The bank guarantee in international trade , 2014, §§ 675, 670 BGB, marginal no. 113