Performance guarantee

from Wikipedia, the free encyclopedia

With the performance bond or performance bond ( English performance bond , French garantie d'exécution, guarantee de livraison ) takes over the issuing guarantor or surety , the liability for the proper fulfillment of a claim in particular of a contract , for example, a purchase agreement or works contract .

General

Purchase contracts, for example, contain two main performance obligations , namely the handover of the purchased item by the seller and, step by step, the payment of the purchase price by the buyer ( Section 433 BGB ), whereby the seller has to provide the property and the buyer has to take over the purchased item. If the contractual handover / transfer of ownership of the object of sale takes place, the seller has fulfilled his main obligation; this also applies to the simultaneous payment of the purchase price by the buyer. There is no financial risk for both contracting parties due to the “step by step” service . However, by virtue of a contractual agreement, either the delivery by delivery period and / or the payment by payment delayed, each created for the other party a counterparty credit risk (see settlement risk , counterparty risk ). This consists of the risk that the other counterparty will partially or not at all fulfill its obligation from the consideration due by the mutual fulfillment date - for whatever reason - while its own obligation has been fulfilled.

This performance risk can be covered by third parties (such as banks , insurers ) in the form of a performance guarantee / performance bond. The creditworthiness of the credit institute / insurer should give the obligee the opportunity to fall back on them if the debtor cannot fulfill the contract.

Legal issues

The performance guarantee / performance bond is intended to secure the performance of an obligation by its debtor ( Section 362 (1) BGB). With debt ratio in turn are legal transactions (such as the purchase agreement), legal (such as unjust enrichment ) or very similar to business obligations (such as Culpa in contrahendo meant). Under owed service other than money debt all other services (such as the delivery of goods meant the purchase contract).

The performance bond / guarantee usually secures a large number of claims, in particular the right to compensation for non-performance , the timeliness of the service, provided that execution periods are agreed in accordance with Section 5 VOB / B or Section 636 BGB, as well as obligations arising from a contractual penalty and repayments Prepayments. In the case of legal obligations, the surety / guarantor secures, for example, the damage liability of the injuring party. For example, if someone negligently destroys someone else's motor vehicle, the statutory offense of unauthorized action pursuant to Section 823 (1) BGB has been implemented. This creates a legal obligation between the parties involved, which entitles the injured party to claim damages from the injuring party. If there are doubts about the creditworthiness of the injuring party, the injured party can request a performance bond to secure his claim for damages.

Performance guarantee / surety are a sub-form of the guarantee or surety . The latter is regulated in Section 765 ff. BGB, which applies to the performance 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 performance guarantee is no- fault- dependent and a performance guarantee is dependent on the fault of the seller.

Credit institutions issue performance 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 pursuant to 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 surety.

When the contract is concluded, two mutual guarantees / sureties can arise from the contracting parties, namely if the buyer requests a (contractual) performance bond for the delivery by the seller and the buyer himself has to provide a payment guarantee for his payment obligation. This is mainly in the business-to-business - business is the case when the respective delivery and payment terms so provide.

Legal consequences

The guarantee case / surety case occurs in the case of performance guarantees / sureties if the main debtor from the guaranteed / surety contract does not or not completely fulfill the main or ancillary service obligations owed by him . The surety creditor may only request the surety amount if the main secured liability exists and the collateral event agreed or assumed by the contracting parties has occurred. Then the creditor only has to assert what was the payment condition of the guarantee (so-called formal guarantee case ). Furthermore, except in the case of a surety / guarantee on first request , the obligee must prove the conclusiveness of the main claim (so-called material surety case ). In doing so, he has to prove that the claim secured by the surety / guarantee is due. If the prerequisites are met, the obligee may use the bank or the insurance from the performance bond / guarantee for cash payment.

Then the bank or the insurance company from the guarantee / surety is obliged to make payment. With the payment of the guarantee according to § 774 Paragraph 1 BGB, the claim of the obligee against the main debtor 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 performance bond expires with the acceptance of the work, unless it has been previously used.

Demarcation

The warranty bond / guarantee is to be classified as a subtype of the performance bond / guarantee, as is the contract performance bond . The latter can only secure the fulfillment obligations resulting from contracts. According to the Federal Court of Justice (BGH), the fulfillment of the contract is only the contractual execution of the deliveries / services transferred to the contractor , including billing .

International

In international credit transactions, in particular, there are a large number of guarantees that serve to secure mutual obligations from a contract. The performance bond is known to some extent in international credit transactions, but the performance 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 . A performance claim that can be secured by a performance bond arises from Art. 68 ff. OR. Austria regulates the guarantee in § § 1344 ff. ABGB . The performance claim from § 1344 ABGB can be secured by a performance bond.

See also

Individual evidence

  1. BGH BauR 1988, 220
  2. BGH BauR 1982, 506
  3. BGH BauR 1988, 220
  4. BGH NJW 1967, 1020
  5. BGH NJW 1973, 884
  6. BGH WM 1999, 779
  7. BGH NJW 1985, 2941
  8. ^ Karl Heinz Güntzer / Peter Hammacher, Handbook of Order Processing , 2007, p. 227
  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
  12. BGHZ 139, 325 , 329
  13. ^ Karl Heinz Güntzer / Peter Hammacher, Handbook of Order Processing , 2007, p. 240
  14. BGH BauR 1988, 220, 224
  15. ^ Andreas Schlüter, Management and Consulting Contracts , 1987, p. 180