In general, a guarantee is when a legal entity makes a legally binding commitment to a certain act or omission before a certain event occurs , for example by means of a corresponding contract ( guarantee contract ).
Mostly the word guarantee is traced back to the French language as “guarantee, security” ( French garantie ). Both words come from the old French verb “to stick for something” ( French garir ) and were used in the French diplomatic language. As a loan word it reached Prussia in 1661 in the same spelling. Even earlier roots probably has the guarantee that the Old High German werent that Old Frisian werand or Medieval Latin warens or warándia is due. The Old High German weren "grant, warranties afford" meant from the medieval Latin warens that developed in English Warranty ( english warranty ), linguistically from the guarantee ( english guarantee ) separately.
Guarantee in everyday language
In everyday language, under guarantee, the assurance of the functionality of goods - especially technical consumer goods - for a certain period of time is referred to. In the event of functional defects during this period, the manufacturer or seller who issued the guarantee undertakes to restore the functionality free of charge. The conditions of the guarantee are recorded in a guarantee certificate. The linguistic usage often makes no difference between the statutory warranty obligation and an additional voluntarily offered contractual guarantee, while legally different rights or obligations are involved.
In Bruges , the word for “security, guarantee” ( French guarantee ) first appeared in 1334. With the Empire guarantee you 1669 joined the assurance of the kingdom in the case of the attack on the territory of a member Reich to make military assistance. In England in 1704 a first instance judgment recognized the guarantee when two people walk into a shop , one of them wants to buy and the other promises the seller that he will pay. The Court of King's Bench held this oral valid explanation for a security position ( English collateral undertaking ). In 1776 Johann Georg Krünitz mentioned the guarantee as state security for Pfandbriefe .
The BGB, which came into force in January 1900, dealt with the guarantee, but not with the guarantee as a type of contract. However, the Reichsgericht (RG) ruled in June 1905 that the guarantee contract was undisputed against the background of freedom of contract in German law. In this regard, the RG rejected a requirement for the guarantee contract to be in writing ; the formal requirement for the guarantee from BGB is not applicable. The Federal Court of Justice (BGH) already adopted this case law in October 1954 . For him, there was a guarantee contract, "provided the obligee is guaranteed that he should receive the performance in any case, even if the debtor's liability did not arise or later ceased to exist".
In January 1917 the Austrian ABGB recognized the guarantee. Since March 2006 the Civil Code (CC) has been regulating “personal securities” through Art. 2287-1 CC. By contrast, the guarantee prevailed in foreign trade earlier than in civil law . Frequent guarantors in international credit transactions are, in particular, credit institutions and insurers, who developed contract models for the various types of guarantee. The International Chamber of Commerce (Paris) established uniform rules for this, especially in 1978 and 1991. The "UN Convention on Independent Guarantees and Stand-by Letters of Credit", negotiated since 1995 and valid from January 2000, also standardizes the guarantee system. At the European level, there has been a proposed regulation for the guarantee in Book IV of the Draft Common Frame of Reference (DCFR) on personal security by consumers since 2008 . Here the surety and guarantee are linked by some general rules. Consumers are not allowed to accept a guarantee because of the risk potential of this type of contract.
There are generally two main types, namely the warranty guarantee and the intercession guarantee . With the warranty guarantee, the manufacturer or dealer (guarantor) guarantees that the subject of the contract has certain properties in purchase or work contracts. In the case of the intercession guarantee, the guarantor must either be responsible for future damage or loss, regardless of fault , or assume liability for a specific economic success . The guarantor assumes the unconditional indemnification obligation if the guaranteed success does not occur.
There is a warranty obligation of the seller according to Section 5, Paragraph 1, Clause 1 EGBGB , if the seller, in accordance with Paragraph 1, Clause 1 BGB , Paragraph 1, Clause 1 BGB, the existence of a certain quality of the Has guaranteed the purchased item. In terms of content, the assurance of a property means the assumption of a guarantee for the existence of this property, combined with the promise to be responsible for all consequences of its absence (even through no fault of your own). A wording based on the assumption of a guarantee is therefore now also contained in § Paragraph 1 BGB and BGB.
The warranty guarantee concerns the legally stipulated liability for defects of the seller / manufacturer for goods sold within a certain period. According to Paragraph 1 No. 3 BGB, it amounts to 24 months in sales law , during which the buyer subsequent performance ( BGB), reduction of the purchase price ( BGB), withdrawal from the contract ( BGB, BGB, (5) BGB), reimbursement of expenses ( BGB) or compensation for damages ( BGB, BGB, BGB). In the case of used goods, it can be reduced to twelve months in terms of general terms and conditions or in individual contracts, also for consumers. BGB raises the guarantee to a legal term . Here it is stipulated if the seller, manufacturer or any other third party in a declaration or relevant advertising that was available before or when the purchase contract was concluded, in addition to the statutory liability for defects, in particular undertakes to reimburse the purchase price, to exchange the item, to improve it or in their context services to be provided, if the matter is not that nature has or does not meet other than the flawlessness requirements in question, which are described in the statement or advertisement, the buyer in the event of a warranty without prejudice to the legal claims the rights from the guarantee against the guarantor to be entitled. Insofar as the guarantor has given a guarantee that the item will retain a certain quality for a certain period ( durability guarantee ), it is assumed that a material defect occurring during its period of validity justifies the rights under the guarantee (Section 443 (2) BGB). The warranty promise often relates to the functionality of certain parts (or the entire device) over a certain period of time. In the case of a guarantee, the condition of the goods at the time they are handed over to the customer does not matter, as functionality is "guaranteed" for the period. However, the guarantee is usually excluded if the cause of the defect lies with the customer or if the customer has tried to carry out a repair himself.
If a material defect appears in the purchase of consumer goods within six months of the transfer of risk , it is assumed, in accordance with German Civil Code, that the item was defective at the time the risk was transferred, unless this assumption is incompatible with the type of item or the defect. There are special regulations for the guarantee declaration ( BGB). In the case of a contract for work and services , the warranty guarantee in accordance with Paragraph 1 BGB for buildings is five years, otherwise two years. If VOB / B applies , these claims for defects are shortened to four years for buildings ( (4) VOB / B). For spare parts for mechanical and electrotechnical / electronic systems where maintenance has an impact on safety and functionality, the limitation period for claims for defects is two years (Section 13 Paragraph 4 No. 2 VOB / B).
While the manufacturer or dealer himself usually assumes liability for his own obligation with the warranty guarantee , in business life there is also the possibility that a third party (guarantor) with good credit guarantees the obligations of a manufacturer or dealer (guarantees). It covers fulfillment or payment risks in international trade and international credit transactions . This guarantee documents that the beneficiary receives a contractually agreed service (e.g. payment , delivery , service ) from a third party. In the event of non-compliance, the specified amount of the guarantee may be claimed from the guarantor.
With the guarantee contract, which is not regulated by law in Germany, the guarantor ( collateral provider ) undertakes independently towards the creditor of a third party ( collateral buyer ) to assume certain economic consequences of poor or non-performance of the third party's liability or liability for damage / success. The attributes "independent, abstract" mean that the guarantee obligation is taken over separately from the main obligation. If the main obligation ceases for any reason, the guarantee obligation continues to exist regardless.
This form of warranty is customary internationally, but not regulated in the BGB, but permissible according to § law of obligations applies analogously .Paragraph 1 BGB, Paragraph 1 BGB. The provisions on the guarantee cannot be applied analogously; rather, the rest of the
A natural or legal person who has to fulfill an obligation from a legal transaction ( client , principal debtor, obligated party) instructs a third party (guarantor) to issue a guarantee in favor of a third party (beneficiary). The guarantee contract is concluded between the guarantor and the client. The guarantor is usually a credit institute ( bank guarantee ), but the guarantor can also be an insurance company ( bond insurance ), a parent company or a state institution ( federal guarantee , state guarantee). Bank guarantees ( surety credits ) can be given directly by the bank of the obliged entity to the beneficiary ( direct guarantee ) or indirectly via a correspondent bank ( indirect guarantee ). In the latter structure is also called a counter-guarantee ( English counter guarantee ).
The abstractness is not a legal expression, but it is used in economic practice as the opposite of the accessoriety (the guarantee ). Understood in this way, the guarantee is abstract in two ways. On the one hand, it establishes a performance obligation on the part of the guarantor that is independent of the basic transaction ( external abstractness ), on the other hand, the effectiveness of a disposition remains unaffected by the fact that it does not contain the agreement on its purpose ( abstractness of content ). The legal relationship between the principal debtor and the guarantee beneficiary (so-called currency ratio ) on which the bank guarantee is based is therefore only of exceptional importance for the legal relationship between the beneficiary and the guarantor. The objections / objections of the principal debtor to the beneficiary relating to the underlying transaction are therefore excluded for the guarantor.
In contrast to the abstract security instrument guarantee, the guarantee is accessory, so that the main debtor's objections / objections to the beneficiary related to the underlying transaction are also due to the surety and the guarantee is very closely related to the existence of the receivable from the underlying transaction.
In order to improve legal security in international transactions and to prevent clients or contractors from enforcing unilateral and unfair contractual terms due to their economic power , international financial institutions have drawn up credit conditions that are binding for orders financed by these institutions. So has z. B. World Bank issued a set of rules for the award of project contracts, which also prescribes binding texts for various guarantees.
- Down payment guarantee (also repayment guarantee , English advance payment guarantee , French guarantee des dépôts ): Guarantee of the seller in favor of the buyer that the down payment will be repaid if the contract is not carried out.
- Ausbietungsgarantie : Saves the creditors of a mortgage in foreclosure a possible bad debt off.
- Tender guarantee (also declaration of readiness, English tender guarantee , bid bond , provisional guarantee , French Garantie de soumission , Garantie provisoire ): Guarantee concluded by the exporter in favor of the supplier in the event of a tender .
- Performance bond (including delivery or performance guarantee, English performance guarantee / bond , French guarantee de livraison ): For the contractual fulfillment of power in favor of the buyer.
- Warranty guarantee ( English Warranty guarantee , retention money bond , French Garantie de bonne fin ): Risk coverage for rectification of defects that occur within the warranty period.
- Konnossementsgarantie ( English shipping guarantee , B / L , French garantie de connaissement ): In order of the importer in favor of the carrier's guarantee created.
- Delivery guarantee ( English delivery bond , French garantie de livraison ): Ensures proper delivery from a contract.
- Rent guarantee : Secures the payment of the rent agreed between the landlord and tenant in a rental agreement for residential or business premises.
- Contract performance bond ( English performance bond , French garantie d'exécution ): Ensures the proper fulfillment of a claim from a contract .
- Bills of exchange guarantee (guarantee on the bill of exchange; the guarantor secures bill of exchange obligation).
- Payment guarantee ( English payment guarantee , French Garantie de paiement ): Securing the exporter's claim to payment of the purchase price.
- Customs guarantee ( English customs bond , French garantie douanière ): Secures the customs authorities to pay the import duty.
The freedom of contract also enables the development of further types of guarantee.
Guarantee in banking
The guarantee in the banking business is an important means of security , which replaces the guarantee , particularly in international credit transactions . Either credit institutions accept this guarantee as collateral or issue bank guarantees that secure certain transactions .
The guarantor unilaterally undertakes in the informal guarantee contract either to be responsible for future damage / loss regardless of fault or to accept liability for a specific economic success. The guaranteed success can also consist in the fact that the bank, as the lender of a loan claim, receives the loan amount back from the debtor. It 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 guaranteed success had occurred or the damage had not occurred.
A sub-form is the guarantee "on first demand". Its purpose is to keep legal or actual disputes arising from the legal relationship between the creditor and the principal debtor (so-called currency ratio ) - the answer to which does not arise automatically ("liquid evidence") - from the guarantee promise and, after the claim has been made, to reserve a reclaim process between the creditor and the principal debtor . The legal relationship between the guarantee issuer and the beneficiary on which the bank guarantee is based is therefore only relevant for the legal relationship between the beneficiary and the bank if this is evident from the content of the guarantee contract or if improper use of the guarantee can be clearly or liquidly proven. In the case of bank guarantees on first request, it can only be inferred from the guarantee contract in exceptional cases that, if the formal requirements for claiming the guarantee ( formal guarantee case ) are met, the beneficiary's claim against the bank should also be dependent on the beneficiary a claim is due in the value relationship to the guarantee client ( material guarantee case ).
A counter-guarantee or counter-guarantee on first request exists if, within the framework of a multi-level (indirect) guarantee relationship, the (primary) bank engaged by the guarantee client does not issue the guarantee to the (final) beneficiary itself, but rather another bank (secondary bank). and the latter promises to reimburse the expenses arising from their assumption of the guarantee “on first request”. In the relationship between the banks involved, it is an independent direct guarantee to secure and supplement the contractual claim for reimbursement of expenses by the second bank against the primary bank. These rules developed for direct guarantees on first request also apply in principle to a counter guarantee on first request. In the case of abuse objection, however, the special features of the counter guarantee must be taken into account. The claim to be settled from the counter-guarantee is fundamentally independent of the actual occurrence of the payment requirements for the guarantee of the second bank vis-à-vis the final beneficiary. Nor does it require that the second bank was allowed to consider the payment to the ultimate beneficiary to be necessary (Section 670 BGB); rather, this question has to be clarified in a recovery process between the primary and secondary banks.
Recognition under banking supervisory law
Guarantees are mostly used as collateral for credit institutions . These grant loans to third party borrowers based on the creditworthiness of the guarantor. The precondition is the so-called surety substitution, in which the poorer risk weight of the borrower is replaced by the better risk weight of the guarantor.
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 banks than for unsecured loans . As a result, secured loans can be granted with a lower interest rate .
Art. 194 CRR establishes 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 recyclable need to be. 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).
According to this, guarantees (and sureties) belong to the personal security as guarantees. In order to be recognized, guarantees have to 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 loans may be treated like claims on the state. Art. 215 CRR stipulates that if the borrower defaults, claims can be made against the protection seller (guarantor) without restriction and there must be no reservation that the institution must first demand the amount owed from the borrower. This criterion is met for guarantees upon first request. 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). Art. 233 para. 1 (CRR) is in the safety assessment of the amount to be recognized as collateral to the payment, the protection provider has undertaken in the case of a credit event.
The guarantee case occurs if the main debtor from the guaranteed contract does not fulfill the main performance obligation owed by him . Then the guarantor is obliged to make payment under the guarantee . With the payment of the guarantee according to 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 BGB.
A distinction must be made between the material and the formal guarantee case, which the BGH adopted in its case law. The material guarantee case relates to the claim to be secured from the underlying transaction . It presupposes that the beneficiary creditor is actually entitled to a claim against the main debtor. He has to prove the conclusiveness of the main claim and to prove that the claim secured by guarantee is due. The formal guarantee case , on the other hand, consists in the mere assertion of the beneficiary creditor that the material guarantee case exists, combined with a request for payment. The creditor only has to assert what was the payment term of the guarantee. If these prerequisites are met, the obligee may claim the guarantor from the given guarantee for monetary payment. If, on the other hand, the material guarantee case has not occurred, the guarantor can prevent its use in the document process as being fraudulent. In the case of a guarantee on first request, the guarantor has to pay when the formal guarantee case has occurred.
Guarantee in international law
If the observance of treaties between states ( international or bilateral ) is guaranteed by other states not directly involved (mostly major powers ), then there is a guarantee under international law. If such a guarantee is given by several guarantee powers, it can be a number of individual guarantees , ie each protecting power can initiate measures to ensure compliance with the contract independently of the others. However, there is also the form of the collective guarantee, which requires coordination between the guarantee powers. In addition to the guarantee for the observance of contracts, there are also guarantees for the maintenance of a condition or the protection of rights, e.g. B. Guarantee of the territorial integrity or the neutrality of a state.
Guarantee in state law
In constitutional law , the establishment of basic rights in the constitutions is called a guarantee of human rights or basic rights. In addition to guaranteeing individual rights, constitutions usually also contain constitutional or institutional guarantees (e.g. local self-government from Paragraph 2 of the Basic Law ). By raising a political organizational principle to constitutional status, it is withdrawn from any change by simple majorities and thus particularly protected.
In Austria the warranty law is regulated in § to ABGB . The Consumer Protection Act (KSchG) contains specific rules for consumers in Sections 8 to 9b KSchG, while the provisions in the ABGB are generally applicable and do not only concern contracts between consumers and entrepreneurs. The guarantee is generally regarded as permissible in ABGB. Most legal questions about bank guarantees are resolved through direct or analogous application of other ABGB provisions, for example with the law of orders (§ ff. ABGB) or with the provisions on guarantees (§ ff. ABGB). In the case of an abstract bank guarantee, the guarantee contract is fundamentally independent of the existence of the main secured debt.
The Swiss OR gives the buyer a guarantee if the purchased goods a defect has. A warranty period of two years has been in effect since January 2013 ( Para. 1 OR). The buyer can request conversion ( Paragraph 1 OR), purchase price reduction (Art. 205 Paragraph 1 OR) or replacement ( Paragraph 1 OR). The guarantee is deemed to be a “contract at the expense of a third party” according to OR; if someone promises someone else the performance of a third party, but it does not take place, the promising party is obliged to compensate for the resulting damage.
In France , the Consumer Rights Act ( French Code de la Consommation ) enacted in 1978 regulates the warranty obligation ( French garantie légale de conformité ), while the warranty for hidden defects ( French garantie de vices cachés ) is based on Art. 1641 Civil Code (CC). "Personal securities" ( French sûretés personnelles ), Art. 2287-1 CC, include the surety ( French cautionnement ), the autonomous guarantee ( French garantie autonome ; Art. 2321 CC) and the letter of intent ( French lettre d´intention ; Art. 2322 CC). With the autonomous guarantee, the guarantor undertakes to an obligation entered into by a third party to pay an amount either on first request ( French à première demande ) or on agreed terms.
In the countries of southern Europe , the guarantee was only dealt with in case law from 1980. In Italy there has been the consumer code ( Italian Codice del Consumo ) since 2005 , which deals with the warranty ( Italian garanzia legal ) and guarantee ( Italian garanzia convenzionale ) in Articles 128 to 135 . In Spain , Art. 1884 Código Civil (CC) contains a provision on liability for hidden defects ( Spanish : saneamiento por vicios o defectos ocultos ). If the defect was hidden, the seller is liable even if he was not aware of the defect himself (Art. 1885 CC).
In England the guarantee promises ( English guarantor ) in the guarantee agreement ( English contract of guarantee ) for the current or future debt of another person ( English principal debtor) pay. In common law it is based on the “Statute of Frauds” (Section 4) from 1677. The US American law differentiates between guarantee ( English guaranty ) and surety ( English suretyship ). The promise of the guarantor ( English surety but) here resembles an assumption of debt , because someone has taken a liability already liable debtor and the creditor for the performance only may require a time. The bank guarantee is prohibited to US banks. Instead, the stand-by letter of credit was developed as a replacement , i.e. a letter of credit with security purpose , for which there is a uniform international contractual set of rules with the UCP 600 .
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