Counter-guarantee

Counter surety is a type of surety in which a main surety is initially liable for an existing main debt, for which the counter surety in turn assumes liability to the main surety .

General

According to this definition of the Federal Court of Justice (BGH), the counter guarantee requires the existence of a main guarantee and thus an obligation on which this main guarantee is based . It is not expressly regulated by law in Germany , but recognized by case law. For the counter guarantee, the regulations of the guarantee law apply without restriction (§ § 765 ff. BGB ).

If a claim is made against the main surety from his (main) surety, he can take recourse to the counter surety , to which the claim against the main debtor is ultimately transferred ( Section 774 (1) BGB). Since the (main) guarantee contract was concluded between the main surety and the creditor of the claim, there is no legal relationship between the creditor and the counter-guarantor. Rather, the counter-guarantee is contractually linked to the (main) guarantor through its counter-guarantee.

The counter surety is considered to be a surety in surety law, the main surety is a creditor, guaranteed main debt is the recourse claim that the main surety acquires against the main debtor by fulfilling his surety.

Guarantee case

The counter-guarantee can only be claimed by the main guarantor according to the conditions of his counter-guarantee if and to the extent that the main guarantee has been used and could not obtain a replacement from the main debtor. Thus, the so-called surety case for the counter surety only arises if the main surety had to pay the creditor from his surety but the main debtor cannot pay the main surety. Then the counter guarantee secures

• the direct right of recourse (e.g. from § 670 BGB) from the internal relationship and
• the creditor's claim to payment, which has already been transferred to the principal guarantor in accordance with Section 774 (1) sentence 1 BGB.

consequences

According to the prevailing opinion today , once the counter-guarantor has been successfully claimed, the claim of the main guarantor against the creditor according to Section 774 (1) sentence 1 BGB is transferred to the counter-guarantor. Any ancillary ancillary rights securing the claim are also transferred to the return guarantee ( Section 401 (1) BGB). This means that the counter-guarantee is fully in the legal position of the main guarantor, which corresponds to the sense of a counter-guarantee.

Counter-guarantees in practice

Typical counter-guarantees are the Federal Republic of Germany and the federal states that take on a counter-guarantee to a loan guarantee association or guarantee bank, which in turn act as guarantors for start-ups and SME financing. These counter-guarantees usually amount to 65 to 75% of the (main) guarantee amount. The federal and state governments take on 65% counter-guarantees for guarantees from the guarantee banks in the old federal states. In the new federal states, the re-guarantee rate by the federal government and federal states has been 70% since 2018. When issuing such counter-guarantees, the counter-guarantees must comply with the EU legal notification obligations so that the EU Commission can examine any state aid-related facts. In the case of loans that are secured by guarantees or sureties from guarantee banks, which are in turn secured by counter-guarantees from the Federal Republic of Germany or a federal state, the state-backed portion of credit institutions can be weighted as a public guarantee with an equity credit of "zero" (Art. 214 f. Capital Adequacy Ordinance , English abbreviation CRR). This enables the financing institutes to relieve their equity.

International

Switzerland

Unlike in Germany, the counter guarantee is provided by law in Switzerland . According to Art. 498 No. 4 No. 2 OR , the counter-guarantor is obliged to “guarantee the paying surety for the recourse to which he is entitled against the main debtor”.

Anglo-Saxon language area

In common law , there is in place of the guarantee, the guarantee ( english guarantee ) accordingly, there is also the counter-guarantee ( English counter-guarantee , back guarantee ).

literature

• Dietrich Reinicke , Klaus Tiedtke: Guarantee law. 3rd completely revised edition. Carl Heymanns Verlag, Cologne et al. 2008, ISBN 978-3-452-26857-0 .

Web links

• Saarbrücken University via counter guarantee
• Conditions for counter-guarantees from the State of Schleswig-Holstein (PDF file; 104 kB)

Individual evidence

1. ↑ BGH , NJW 1972, 576
2. ↑ BGHZ 73, 94 , 96
3. ^ BGH NJW 1986, 310.
4. ↑ The main guarantor was previously (also in accordance with Section 774, Paragraph 1, Clause 1 BGB) in the position of creditors. So z. B. Karl Larenz / Claus-Wilhelm Canaris , Textbook of the Law of Obligations , 1994, p. 21; also Dietrich Reinicke / Klaus Tiedtke , Guarantee Law , 2008, margin no. 428: Accessory transfer of the creditor's claim to the main debtor with the internal claim from the guarantor-main debtor (§§ 401, 412 BGB).
5. ↑ see the exemplary case of the state of Saxony-Anhalt from October 1996, which had taken on counter-guarantees in favor of the Bürgschaftsbank; 98/276 / EG: Commission decision of November 18, 1997 on counter-guarantees from the German state of Saxony-Anhalt to secure guarantees from the Bürgschaftsbank Sachsen-Anhalt GmbH in favor of companies in difficulty
6. ↑ ABI EG L196 p. 17 of July 28, 2009, risk weight of state counter-guarantees zero according to Art. 78-83 CRR; Further information at: Association of German Guarantee Banks, weighting of guarantees

Please note the information on legal issues!