Delivery guarantee

With a guaranteed delivery (or delivery guarantee ; English delivery bond , French garantie de livraison ) the certifying takes guarantor or surety , the liability for the proper delivery of a contract , such as a purchase or service contract .

General

Is in a purchase or contract for the delivery by delivery date delayed, created for the customer / importer / buyer a counterparty credit risk (see settlement risk , counterparty risk ). There is a risk that the contractor / exporter / seller will partially or not at all meet his obligation from the delivery due on the delivery date, while the buyer has fulfilled his own payment obligation. The longer the delivery period is postponed, the higher the risk of non-fulfillment . There are long delivery times in the economy where goods have to be manufactured before ordering . Delivery guarantees are important in the context of contracts for work and services and are common in the construction industry , in plant , aircraft , machine and shipbuilding . Due to the vulnerability to insolvency , delivery guarantees are common in the construction industry . However, the manufacturing risk can be covered by credit institutes or insurers in the form of delivery guarantees / delivery guarantees.

Delivery guarantees / surety bonds generally reach between 5% and 10% of the contract value. Its pedant is the payment guarantee , which is required if the buyer does not pay immediately, but is given a payment term in the payment terms.

Legal issues

Delivery guarantees are customary in the business -to-business relationship when there is a high delivery risk and are part of the delivery conditions there . In the context of foreign trade finance, import finance assumes that the delivery risk is covered by delivery guarantees or export credit insurance.

The delivery guarantee is intended to secure the seller's obligation to deliver under Section 433 (1) BGB . This provides for a step-by-step delivery against payment of the purchase price , so that if the purchase price is paid immediately - but later delivery - there is an advance performance risk for the buyer. He then grants the seller a customer credit , which is secured by a delivery guarantee.

Credit institutions issue delivery guarantees 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 in which the “other” is the beneficiary ( Section 44 (1) VVG).

Legal consequences

The guarantee / surety case occurs in the case of delivery guarantees / sureties if the seller / exporter / contractor does not meet his contractual delivery obligations or does not meet them on time. The obligee may only request the surety / guarantee amount if the main secured liability exists and the collateral event agreed or assumed by the contracting parties has occurred. All the buyer has to do is state what was the payment term of the guarantee (so-called formal guarantee case ). In addition, with the exception of a surety / guarantee on first request , the buyer 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 claim the credit institute or the insurance from the given delivery guarantee / surety for monetary payment.

The bank or the insurer are obliged to make payment under the guarantee / surety. With the payment, the buyer's claim to delivery against the seller is transferred to the surety by virtue of law ( legal session ) in the case of the guarantee in accordance with Section 774 (1) BGB ; the guarantee is based on a claim for reimbursement of expenses from Section 670 BGB.

Delivery guarantees with a different content

As a delivery guarantee and the assurance of a colloquially manufacturer or dealer in relation to the consumer referred to certain goods or replacement parts ( consumables ) for a certain period in the offer to keep. This is intended to ensure that mass- produced durable goods or spare parts can still be bought for a longer period of time. This also applies to teleshopping , for example , when the supplier offers a delivery guarantee for a fixed period of time.

According to the VDMA , the so-called stockpiling obligation is to be limited to those spare parts of a machine which experience shows are subject to wear and tear within the normal service life of the machine . In jurisprudence and legal doctrine, there is a prevailing opinion that a post-contractual secondary obligation of the manufacturer / dealer consists of the contract to supply its customers with spare parts for a reasonable period of time , especially in the case of products that are subject to natural wear and tear, even after the warranty period has expired . In the case of certain technical devices, such as cars, machines or televisions, an obligation is derived from § § 157 , § 242 BGB (principle of good faith ) to the effect that the seller, even without his own agreement, required spare parts for the average service life must be ready and deliver for a reasonable fee. The violation of the obligation to deliver spare parts falls under § 280 , § 286 Paragraph 1 and Paragraph 2 of the German Civil Code.

A model regulation provides that the supplier will ensure the delivery of spare parts for at least ten years after the respective series has expired ; The manufacturing equipment required for the production of spare parts is also kept for this period. The automotive industry , for example, has largely subscribed to this principle . Spare parts are goods that are installed in or attached to a motor vehicle and replace a component of this vehicle, including goods such as lubricating oils that are required for the use of the motor vehicle, with the exception of fuels.

An implicit delivery guarantee also includes a beer delivery contract , framework contract , successive delivery contract or work delivery contract .

Demarcation

The performance guarantee also covers the delivery risk, but also the product quality or warranty obligations . The specific warranty obligations of the seller are usually covered by warranty guarantees. The performance bond can also cover the delivery risk ; it expires upon delivery.

International

In foreign trade and foreign trade finance, the importer uses a delivery guarantee to protect himself against the financial consequences of the risk that the exporter does not deliver the goods in accordance with the contract, in particular not on time, or is unable to deliver. Additional clauses in the delivery guarantee can take into account that the exporter could deliver, but is prevented from doing so by an export ban or other force majeure .

As part of the process for awarding of contracts in competition in is Austria the so-called often Vadium demanded that the principal forfeited if the bidder does not deliver (on time).

In other cases, the tenderers are often secured by a bid guarantee. Banks / insurers guarantee that the bidder submits a serious offer and does not withdraw before the contract is concluded.