warranty

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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 ).

etymology

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.

history

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 § 766 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.

species

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.

Guarantee

There is a warranty obligation of the seller according to Art. 229, Section 5, Paragraph 1, Clause 1 EGBGB , if the seller, in accordance with Section 434, Paragraph 1, Clause 1 BGB , Section 276, 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 § § 442 Paragraph 1 BGB and § 443 BGB.

The warranty guarantee concerns the legally stipulated liability for defects of the seller / manufacturer for goods sold within a certain period. According to § 438 Paragraph 1 No. 3 BGB, it amounts to 24 months in sales law , during which the buyer subsequent performance ( § 439 BGB), reduction of the purchase price ( § 441 BGB), withdrawal from the contract ( § 440 BGB, § 323 BGB, § 326 (5) BGB), reimbursement of expenses ( Section 284 BGB) or compensation for damages ( Section 440 BGB, Section 280 BGB, Section 281 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. § 443 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 Section 477 of the 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 ( § 479 BGB). In the case of a contract for work and services , the warranty guarantee in accordance with Section 634a 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 ( Section 13 (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).

Intercession guarantee

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 § § 311 Paragraph 1 BGB, § 241 Paragraph 1 BGB. The provisions on the guarantee cannot be applied analogously; rather, the rest of the law of obligations applies analogously .

Involved

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 ).

Abstractness

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.

Warranty types

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.

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.

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 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).

Guarantees

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.

Guarantee case

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 § 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.

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 Article 28, 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.

International

In Austria the warranty law is regulated in § § 922 to § 933b 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 § 880a 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 (§ § 1002 ff. ABGB) or with the provisions on guarantees (§ § 1346 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 ( Art. 210 Para. 1 OR). The buyer can request conversion ( Art. 205 Paragraph 1 OR), purchase price reduction (Art. 205 Paragraph 1 OR) or replacement ( Art. 206 Paragraph 1 OR). The guarantee is deemed to be a “contract at the expense of a third party” according to Art. 111 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 .

literature

  • Alexander W. Oehlmann: Practice of foreign guarantees . Economica, Heidelberg 2002, ISBN 3-87081-237-0 .
  • Norbert Horn: Guarantees and guarantees . RWS-Verlag, Cologne 2001, ISBN 3-8145-7094-4 .

See also

Web links

Wiktionary: Guarantee  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Ursula Herrmann, Knaurs etymological dictionary , 1983, p. 172
  2. ^ Friedrich Kluge, Etymological Dictionary of the German Language , 1989, p. 244
  3. ↑ Gerhard Köbler , Etymological Legal Dictionary , 1995, p. 142 f.
  4. ^ Friedrich Ludwig Karl Weigand, German Dictionary , A – L, Volume 1, 1873, pp. 524 f.
  5. ↑ Gerhard Köbler, Etymological Legal Dictionary , 1995, p. 143
  6. ↑ Heino Speer (arr.), German Legal Dictionary , Volume XI, 2003–2007, Col. 613
  7. ↑ Birkmyr vs. Darwell, 1704, 91 ER 27: 1 Salk 27
  8. ↑ Himanshi Mittal, Universal Law Series Law of Contract and Specific Relief , 2011, p. 94
  9. ↑ James Williams, The Statute of Frauds Section Four , 1932, p. 5
  10. ↑ Johann Georg Krünitz, oekonomische encyklopädie or General System of state, city, household and agriculture , Volume VIII 1776, p 442
  11. ^ RG, judgment of June 29, 1905, Az .: Rep. VI. 531/04 = RGZ 61, 157 , 160
  12. ^ BGH, judgment of October 28, 1954, Az .: IV ZR 122/54 = BGH WM 1955, 265
  13. ↑ Emanuel HF Ballo, The general terms and conditions control of credit agreements in acquisition financing , 2010, p. 174
  14. ^ Karl Larenz / Claus-Wilhelm Canaris , Textbook of the Law of Obligations , Volume II / 2, 1994, p. 66
  15. ↑ a b BGH NJW 1973, 884
  16. ↑ BGH WM 1999, 779
  17. ↑ BGH NJW 1996, 2569 , 2570
  18. ^ BGH, judgment of November 5, 2010, Az .: V ZR 228/09 = BGH NJW 2011, 1217
  19. ↑ BT-Drs. 14/6040 of May 14, 2001, draft of a law to modernize the law of obligations , p. 132
  20. ↑ BGH NJW 1967, 1020
  21. ↑ a b BGH NJW 1999, 570
  22. ^ The World Bank: Standard Bidding Documents - Procurement of Works & User´s Guide , Washington DC, 2006
  23. ↑ BGH WM 1999, 779
  24. ^ BGH WM 1979, 457
  25. ↑ BGH NJW 1985, 2941
  26. ↑ BGH WM 1984, 633
  27. ↑ BGH NJW 2001, 282
  28. ↑ Thorsten Gendrich / Walter Gruber / Ronny Hahn (eds.), Solvency Handbook , 2014, p. 175 FN 38
  29. ↑ Thorsten Gendrich / Walter Gruber / Ronny Hahn (eds.), Solvency Handbook , 2014, p. 176
  30. ↑ Friedrich Graf von Westphalen / Brigitta Zöchling-Jud (eds.), The bank guarantee in international trade , 2014, §§ 675, 670 BGB, marginal no. 113
  31. ↑ Walther Hadding / Franz Häuser / Reinhard Welter, Guarantee and Guarantee , in: Expert opinions and proposals for revising the law of obligations, Volume III, 1983, p. 728 f.
  32. ↑ BGHZ 90, 287 , 292
  33. ↑ BGHZ 90, 287, 292
  34. ↑ BGH NJW 1997, 1435
  35. ↑ Brigitta Jud / Martin Spitzer, bank guarantee in Austrian law , in: Friedrich Graf von Westphalen / Brigitta Jud (eds.), The bank guarantee in international trade, in: Law and Economy, 2005, pp. 385-426
  36. ^ OGH , judgment of February 23, 1977, Az .: 8Ob560 / 76
  37. ↑ Christian Förster, The Fusion of Guarantee and Guarantee , 2010, p. 89
  38. ^ Friedrich Graf von Westphalen / Brigitta Jud (eds.), The bank guarantee in international trade , in: Law and Economy, 2005, p. 400