Bank guarantee

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The Bankaval (also the Bankaval ) or Avalkredit (from Italian avallo , "bill of exchange", this from Arabic حوالة, DMG Hawala = hawala , "mandate", "change") is banking the acquisition of guarantees , guarantees or similar liabilities of credit institutions in order of bank customers as part of the lending business . The term Aval also stands for the signing of a bill of exchange by an additional person, who is thus liable as a bill surety as well as the drawee and the issuer of the bill of exchange.

General

The lending operations of banks consists in part of lending by issuing loans and loans of any kind, including legal and overdraft or overdraft facilities include. On the other hand, credit institutions are also liable as surety or guarantor in the context of contingent obligations, i.e. they assume the liability risk for obligations that their bank customers have entered into towards third parties . Here they do not make any money available (so-called " money lending "), but are liable as guarantor with their creditworthiness (so-called " credit lending ").

Legal bases

In Germany, the guarantee credit is a banking transaction in accordance with Section 1 No. 8 KWG . According to this, only credit institutions and, in exceptional cases, insurance companies are allowed to take on guarantee credits for their customers. In the same way as with money loans, the bank acts as a lender in the guarantee business ; the bank customer is the borrower . The basis of the guarantee credit is a credit agreement with the borrower, the object of which is the assumption of contingent liability by the bank (guarantee credit agreement ). The guarantee credit agreement is concluded in writing using the chosen written form ( Section 127 BGB ). In the legal relationship between the bank and the surety creditor, surety law applies; the legal relationship between the bank and bank customer is protected by a pecuniary agency agreement in by which it takes over the bank on payment of a guarantee commission to vouch for the benefit of its customers towards its creditors.

There is a three-party relationship with guarantee credits. The bank is a surety according to § 765 BGB, the bank customer is the debtor of the guaranteed liability or the service to be provided, the creditor of the bank customer is also the beneficiary of the bank guarantee. From the point of view of the bank, its function as a surety is contingent liability because it can initially assume that the bank customer will fulfill his guaranteed obligation or provide his promised service and the bank guarantee will expire as a result. If this does not happen, the bank's contingent liability turns into a real liability to the bank customer's creditor. The bank pays as a surety for its customers who are unable or unwilling to pay, whereby according to § 774 BGB and the corresponding conditions of the credit agreement, the claim of the surety creditor is automatically transferred to the bank by way of the legal session . The bank's credit risk is that the bank has to assess the likelihood of a claim from its contingent liability and, if it is called, try to enforce its repayment claim against its bank customers.

The guarantee issued by the bank as part of the guarantee credit is regulated in Sections 765 to 778 BGB and Sections 349 and 350 HGB . The guarantee , however, is not regulated by law. It is a contractual legal contract within the meaning of § 311 BGB, the content of the contractual partner in the framework of freedom of contract can largely determine themselves. In international business, the banks generally use the internationally customary guarantee, which is payable upon first request and against a declaration by the beneficiary (for example that the customer has not met his contractual obligations).

Due to the guarantee, the guarantor (= the bank issuing the guarantee).

  • to stand up for future success or
  • to assume the guarantee for any future damage that has not yet occurred.

Internationally, among other things, an attempt was made in 1991 to create uniform guarantee conditions, which resulted in uniform guidelines for contractual guarantees of the International Chamber of Commerce.

In terms of balance sheet law, guarantee credits are shown as contingent liabilities “under the balance sheet” in accordance with Section 251 HGB. According to Section 19 (1) KWG, the guarantee credit is one of the “other off-balance sheet transactions” and is offset against the credit volume like a money loan . In contrast to cash credits, guarantee credits are not recorded in the balance sheet itself, but as contingent liabilities below the balance sheet as an "off-balance sheet transaction" and are therefore not part of the balance sheet total . The contingent liabilities from the guarantee credit business and the endorsement liabilities from passed bills of exchange are added to the balance sheet total in order to determine the important measure of the business volume for banks .

Types of guarantee

Guarantee commission

For its credit risk and the service on which the agency agreement is based , the bank receives a guarantee commission based on the amount and risk of the guarantee credit in accordance with the loan agreement. Since it is not a money loan , the guarantee commission is not based on the current loan interest , but on the bank's individual liability risk . This is the reason why we talk about guarantee commission, because commissions are charged in connection with services. In addition, the regulatory classification of the guarantee credit plays a role in the amount of the guarantee commission. With the exception of the advance payment guarantees, due to the comparatively low credit risk, guarantee credits only have to be backed with 50% own funds (Art. 166 Capital Adequacy Ordinance ).

Deposit insurance

As part of the insurance for third-party account ( Sections 43 ff. VVG ), insurance companies operate what is known as deposit insurance . They accept the same types of guarantee as credit institutions and therefore act as competitors. However, the provisions of Sections 43 ff. VVG are only applicable to a limited extent to the surety insurance business because the surety relationship between the surety creditor and the insurance company creates an independent legal relationship. In any case, the insured risk is the poor management of the insured. According to section 2 (2) of the KWG, the provision of section 14 of the KWG for loans in the millions applies to insurance companies , meaning that surety insurances must also be reported quarterly to the Deutsche Bundesbank . In a circular dated May 22, 1996, BAFin informed all German insurance companies licensed for credit and surety insurance business of the special risks of surety insurance and set out organizational requirements for this. According to § 210 VVG, the risks from surety insurance are major risks.

Economical meaning

Borrowers avoid the use of liquidity, for example by deferral or by foregoing deposits . There is only a guarantee commission, which is usually well below the market interest rate .

For the credit institutions, guarantees are considered contingent liabilities, so that liquid funds only have to be made available if the contingent liability is used. Therefore, the counterparty risk of the guarantee borrower is weighted lower and therefore allows a higher credit volume than real cash credits .

termination

Guarantee credits are not redeemed as a contingent obligation , but are booked out by the liable bank after the guarantee purpose has been fulfilled by returning the original certificate . According to the loan agreement, the unconditional return of the original document is an implied act by the surety creditor or a third party that he will no longer assert his rights from the bank guarantee.

Aval guarantee

The aval guarantee is a security (guarantee promise ) in favor of the guarantor and belongs to the products of the export credit guarantees of the federal government ( Hermes guarantee ). With this, the federal government essentially relieves the guarantor of the risk of recourse to the exporter . This is because the guarantee means that the federal government will reimburse the guarantor for the amount of the guarantee drawn up to the guaranteed rate (max. 80%). The reimbursement is made upon first request and in particular regardless of the reason for drawing. The aval guarantee is therefore not a mere default guarantee, and the reimbursement payment is also made in the event of a justified claim ( English fair calling ). It leads to a direct relief of the exporter's credit line . Small and medium-sized companies in particular can thereby improve their liquidity.

International

Art. 4 No. 93 and Art. 5 Capital Adequacy Ordinance (CRR) include the risk position of contingent liabilities in the lending business of the CRR credit institutions , which enables credit institutions in the EU member states to use guarantee credit.

In Austria, the basics are largely the same as in Germany. In Switzerland , the guarantee credit is also called a deposit loan , which applies to all types of liability that are possible in Germany. In France , the guarantee ( French cautionnement ) is provided for in Art. 2288 ff. Code civil (CC), the guarantee ( French garantie ) in Art. 2321 CC. The guarantee occurs as a default guarantee ( French cautionnement simple ) or as a joint and several guarantee ( French cautionnement solidaire ). Their accessibility is regulated in Art. 2289 CC, the objection of the advance action ( French bénéfice de discussion ) in Art. 2298 CC. Banks can also act as guarantors ( French garantie bancaire ), whereby there are payment guarantees ( French garanties de paiement ), bid guarantees ( French garanties de soumission ), advance payment guarantees ( French garanties de restitution d'acompte ) or contract performance guarantees ( French garanties de bonne exécution, garanties de bonne fin ) there.

In the Anglo-Saxon area, the bank aval ( English contingency ) is widespread. In the USA , on the other hand, according to Title 12 USC Sec. 24 (1988) do not assume any sureties / guarantees, which is why the standby letter of credit is the only possibility of assuming liability. The standby letter of credit appears formally as part of a letter of credit , but in material terms it is an instrument similar to a guarantee if the economic purpose of the obligation is to compensate for the financial disadvantages if a certain success is not achieved ( e.g. failure to meet a delivery obligation).

literature

  • Wolfgang Grill / Hannelore Grill / Hans Perczynski: Economics of the credit system. 42nd edition, Bildungsverlag EINS, Bad Homburg 2008

Individual evidence

  1. ↑ Andreas Wien, Commercial and Corporate Law , 2013, p. 111
  2. ^ BGH, judgment of May 3, 1984 , Az. IX ZR 37/83, full text = NJW  1984, 2088.
  3. ^ Rocco Jula: Property Insurance Law , 2005, p. 4.
  4. ^ A b Hansjoachim von Wick / Dieter Feldmann: New framework for credit and surety insurance , 1998, p. 24.
  5. ↑ BAFin circular of May 22, 1996 on credit and surety insurance ( Memento of January 30, 2012 in the Internet Archive ), p. 135 f.
  6. ↑ Stefan Arnold, The guarantee on first request in German and English law , 2008, p. 46