Guarantee on first request
The guarantee on first request is a special form of guarantee that has been recognized in Germany since 1979 . It has established itself in practice due to the freedom of contract of the law of obligations and is not regulated by law, but was developed by the case law of the BGH .
Differentiation from the absolute guarantee
The absolute guarantee is the normal case in practice. In the case of this, the surety waives the defense of the advance action; he is therefore unconditionally liable like the main debtor ( Section 773 (1) No. 1 BGB). With the defense of the advance action, the surety can initially fend off a claim by the surety creditor. The surety creditor has to prove that he has unsuccessfully tried to enforce his secured claim against the principal debtor by means of foreclosure in his property. The surety only has to pay in the event of a proven unsuccessful attempt at enforcement ( Section 771 BGB).
Which is (in the guarantee "on first demand" English on first demand ) different. According to the rulings of the BGH, it does not constitute a form of security of its own, but merely represents a form of guarantee obligation that particularly privileges the creditor. The purpose of a guarantee “on first request” is to provide the creditor with liquid funds within a very short time. The surety has only very few options to prevent claims by the surety creditor; In any case, he is not entitled to the objection of the preliminary complaint.
content
The guarantee "on request" is used to quickly enforce the claims it has secured. In order for it to be able to fulfill this function, the eligibility requirements must be largely formalized and the possibilities of defense (in particular the objection of contestability under Section 770 (1) BGB) must be severely restricted or even excluded. For these reasons, in order to determine which claims are secured by the guarantee “on first request”, only those circumstances are relevant that arise from the guarantee itself and the documents to which it relates. Facts that are undisputed or that are documented by the court may also be taken into account. If payment of the surety is agreed "on first request", the surety has assumed a particularly high-risk liability with an extent similar to that of a guarantee. However, the accessibility to the main requirement has not been abolished, it has merely been relaxed.
From a legal point of view, the subject of defenses and objections can be dealt with by agreeing on a reversal of the burden of proof up to a waiver .
Utilization
If the surety is to be called upon for payment from his surety "on first request", the so-called surety case must have occurred. A distinction is made between the material and formal guarantee cases. In principle, however, the motto “pay first, then litigate” applies to the guarantor.
Formal guarantee case
The surety creditor must provide evidence that the requirements for making claims against the surety are fulfilled. The surety creditor only has to assert what was the payment condition of the surety. The formal guarantee case does not exist if
- the guarantee secures another claim in an easily recognizable manner or
- in the context of the objection of inadmissible exercise of the law ( § 242 BGB) it is obvious or “liquid provable” that the material guarantee case has not occurred.
Material guarantee case
In the case of the guarantee with the right to object, the surety creditor must first justify and substantiate the conclusiveness of the main claim (claim against the main debtor) in addition to the existence of the surety. However, this is not the case with the guarantee “on first demand”. The surety does not have to pay only in the event of abuse of the law. This is the case if it can be proven with liquidity that the material guarantee case has not occurred. From the above-mentioned BGH rulings, the general principle can be derived that the guarantee should enable the creditor "on first request" to dispute the material guarantee case "in the money" (i.e. after payment by the surety) to lead. If, despite the formal guarantee requirements, the material guarantee case has not occurred and “liquid” evidence is not available, the surety must pay.
Recovery process
In the case of the guarantee “on first demand”, the surety must pay the creditor regardless of the question of the existence of the guaranteed main claim , but if the main claim does not exist, he can then demand his payment back due to unjust enrichment . In this process, all disputes about the existence of the main debt, about any guarantee periods or about the guarantee liability that has subsequently lapsed must be resolved. However, the case law has also generally referred disputes about individual points of the guarantee obligation, such as the question of whether or until when the guarantee is limited in time or whether the prerequisites for the liability obligation are no longer applicable, in the recovery process.
The surety bears the risk of enforcement or bankruptcy . He can shift this risk to the main debtor by recourse, because the claim is transferred to him by making use of it. The surety “on first request” therefore also assumes the risk of not being able to get back an unjustified claim from the obligee due to his bankruptcy.
It would contradict the purpose of a guarantee "on first request" if the rapid enforcement of the guarantee claim could be prevented in all cases with the objection of abuse of rights in which a fact to be proven by the creditor cannot be clarified immediately ("liquid"). Anyone who has issued a guarantee “on first request” can only reclaim the payment made if and to the extent that the creditor has no claim to the performance received under substantive guarantee law ( Section 765 ff. BGB).
Ineffectiveness
Precisely because of the changed risk distribution, the agreement of a guarantee "on first request", in particular within the framework of general terms and conditions ( GTC ), is fundamentally ineffective . The client's security interests are inappropriately expanded beyond his creditable interest.
Conditions
Such agreements are invalid in the context of general terms and conditions. A reduction of form clauses to their permissible part, which is already very dubious but sometimes recognized by case law, is not considered in the case of a guarantee on first request (cf. § 306 BGB). However, the case law does not assess the admissibility of the validity-preserving reduction in a uniform manner.
Individual contractual agreements
Individual contractual agreements exist if the regulation was actually at the disposal of the guaranteeing contracting party. In this case, the agreement is basically possible. Because then it is assumed that the surety's interests have been adequately taken into account. But this path is dangerous. The impression must not be given that the new case law of the BGH is to be circumvented.
Recognition under banking supervisory law
A large part of the guarantees on first demand serve as security for credit institutions . These grant loans to third party borrowers based on the creditworthiness of the guarantor .
General
Since January 2014, credit collateral has been legally considered a credit risk mitigation technique by banking regulators . If credit collateral is recognized as a credit risk mitigation technique by the Capital Adequacy Regulation (CRR) applicable in all EU member states , it leads to a lower level of equity capital for credit institutions compared to unsecured loans . As a result, secured loans can be granted with a lower interest rate .
The Kapitaladäquanzverordnung provides in Art. 194 CRR principles for the supervisory recognition of credit risk mitigation techniques, after which loan collateral in particular in all jurisdictions legally (English valid ) and enforceable (English enforcable must be) sufficiently liquid , over time a stable value and a credit event promptly utilizable be have to. The positive correlation between the collateral and the borrower's creditworthiness must not be very high (Art. 194 (4) CRR). A distinction is made between credit risk mitigation techniques “with collateral” ( real collateral ; Art. 4 (1) No. 58 CRR) and “without collateral” ( personal collateral ; Art. 203 CRR).
Guarantees / sureties
According to this, guarantees and sureties belong to the personal securities as guarantees. For the purpose of recognition, guarantees must meet certain conditions. Art. 213 CRR requires direct guarantees, according to Art. 214 para. 1 CRR certain counter-guarantees are recognized. In the case of counter-guarantees from states and other public bodies, the secured claims may be treated like claims on the state. Art. 215 CRR stipulates that in the event of default by the borrower, claims can be made against the protection seller (guarantor / surety) without restriction and that there must be no reservation that the institution must first demand the amount owed from the borrower. This criterion is met on first request for guarantees. According to Art. 183 Para. 1c CRR, it must be issued in writing , it must not be revocable by the protection seller and the protection seller's assets must be seizable by an enforceable judgment . According to Art. 183 (1b) CRR, the same rules apply to recognized protection providers as to debtors (Articles 171, 172 and 173 CRR), so that the economic situation of the liable protection seller must be examined in the same way as that of the borrower as part of a creditworthiness check. To avoid positive correlations must guarantor neither group terms with the borrower ( English cross-garanties also be connected with the bank).
literature
- Stefan Arnold: The guarantee on first request in German and English law. Mohr Siebeck, Tübingen 2008, ISBN 3-16-149550-0 ( Studies on Foreign and International Private Law 196), (At the same time dissertation, Erlangen 2007).
- Grit Brüschel: The case law on the guarantee on first request. Seminar paper at the University of Leipzig (Ed. Institute for German and International Banking and Capital Market Law). Leipzig 2002, online (PDF 136.3 kB), accessed January 14, 2014.
- Ronny Duckstein, Gero Pfeiffer: The defense of the preliminary indictment (§ 771 BGB). In: Juristische Rundschau (JR) 2010, 231.
Individual evidence
- ↑ a b BGH WM 1999, 895
- ^ BGH WM 1996, 2228
- ↑ a b BGH WM 1998, 1062, 1064
- ^ BGH WM 1985, 1387
- ↑ a b BGH NJW 1997, 1435
- ↑ BGH WM 1997, 656
- ↑ BGH WM 1999, 570
- ↑ BGH WM 1996, 193
- ^ BGH WM 1996, 193, 195
- ↑ BGH NJW 2003, 352
- ↑ Thorsten Gendrich / Walter Gruber / Ronny Hahn (eds.), Solvency Handbook , 2014, p. 175 FN 38
- ↑ Thorsten Gendrich / Walter Gruber / Ronny Hahn (eds.), Solvency Handbook , 2014, p. 176
