Contract performance guarantee

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With a Vertragserfüllungsbürgschaft (or performance bond ; English performance bond , French guarantee d'exécution ) accepts the issuing guarantor or guarantee the adhesion for the proper performance of a claim of a contract , for example, a sales contract or service 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. The later the mutual fulfillment of the contract is after the conclusion of the contract, the higher the mutual insolvency risk .

There are long periods of fulfillment in the economy where something has yet to be produced. Contract performance guarantees are therefore particularly important in the context of contracts for work and services and are common in the construction industry , in plant , machine , aircraft and shipbuilding . Due to their frequency and vulnerability to insolvency, compliance bonds are the most common in the construction industry.

This performance risk can be covered by third parties (e.g. credit institutes , insurers ) in the form of a contract performance bond / contract performance guarantee. 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.

content

The contract performance bond / guarantee in favor of the contractor secures his payment claim against the client for payment of the contract amount. In favor of the customer, it secures his claims for timely and complete performance of the work, in particular:

The contractual performance bond / guarantee is therefore intended to ensure the agreed, proper and timely fulfillment of all obligations of the contractor. In the case of public clients , too , the guarantee in accordance with Section 17 (1) No. 2 VOB / B serves to ensure that the service is carried out in accordance with the contract. The provision of such guarantees is usually provided for in the general terms and conditions of the client.

According to Section 9 No. 8 VOB / A, the required contract performance guarantees for public clients should not exceed 5% of the contract value, but generally 10% of the contract value has prevailed for contract performance guarantees and is not legally objected to. If the contractor becomes insolvent before the completion of his work and the client must therefore commission a third party to complete the construction project, the resulting damage will reach or even exceed 10% of the contract value. The contractor must deposit the guarantee document in accordance with Section 17 No. 7 VOB / B with the municipality within 18 working days of the conclusion of the contract. If contractual penalties are also the subject of a performance bond, they are appropriate in the amount of 5% of the order total.

Legal issues

The contract performance guarantee / contract performance bond is intended to secure the performance of a contractual obligation by its debtor ( Section 362 (1) BGB). Under owed service other than money debt all other services (such as the delivery of goods meant the purchase contract).

The contract performance bond / guarantee generally secures a large number of claims, in particular the claim for 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, and obligations from a contractual penalty and repayments Prepayments . Fulfillment of the contract extends to the fulfillment of all obligations under the contract, in particular for the contractual execution of the service including billing , warranty and compensation as well as the reimbursement of overpayments including interest.

Contract performance bond / guarantee are a sub-form of the surety or guarantee . The former is regulated in § 765 ff. BGB, which is to be applied to the contract performance guarantee. The guarantee replaces the surety in international credit transactions , but is not regulated in the BGB, but is permissible according to Section 311 (1) BGB, Section 241 (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 contract performance guarantee is no- fault- dependent and a contract performance guarantee is dependent on the fault of the seller. A contract performance bond / guarantee upon first request is not permitted. According to Section 17, Paragraph 4, Clause 3 of VOB / B, a “guarantee upon first request” cannot be required in the construction industry ; The BGH considered this provision to be effective.

Credit institutions issue contract performance bonds / 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. 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 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 contract performance bonds / guarantees if the main debtor from the guaranteed / guaranteed contract does not or not completely fulfill the main performance obligation or ancillary performance obligations owed by him . This also includes exceeding a contractually agreed completion date ( construction time risk ). 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, the obligee must prove the conclusiveness of the main claim (so-called material guarantee 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 institution or the insurance from the given contract 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.

termination

The guarantee expires - also because of its accessory nature - with the unconditional acceptance of the contractually guaranteed service by the client. Then the original of the document must be returned to the surety without reservation. A surrender obligation also exists if the client has successfully claimed payment from the surety. According to Section 17 No. 4 Clause 2, last half-sentence VOB / B, the guarantee must not be limited in time so that the construction time risk cannot fall back on the client. In principle, the contracting parties can freely agree which claims are to be secured by a performance bond. You therefore have the option of subjecting it to warranty claims. However, if the parties agree that the contract performance bond is to be replaced by a warranty bond upon termination , this indicates that the performance bond should at least not extend to the warranty claims arising after acceptance.

Demarcation

The warranty bond / guarantee is to be classified as a sub-type of the performance bond, as is the contract performance bond. The latter can only secure the fulfillment obligations resulting from contracts. The performance guarantee also covers the delivery risk, but also the product quality or even warranty obligations . 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 . This is the scope of the contract performance bonds / guarantees in the narrower sense.

International

In international credit transactions, in particular, there are a large number of guarantees that serve to secure mutual obligations from a contract. In international credit transactions, the performance bond is known to some extent, 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 . Austria regulates the guarantee in § § 1344 ff. ABGB .

See also

Individual evidence

  1. ^ BGH, judgment of December 9, 2010, Az .: VII ZR 7/10 = BGH NJW 2011, 2125
  2. ↑ BGH BauR 2003, 870
  3. ↑ BGH BauR 1988, 220
  4. ↑ BGH BauR 1982, 506
  5. ↑ BGH BauR 1988, 220
  6. ↑ BGH NJW 1967, 1020
  7. ↑ BGH NJW 1973, 884
  8. ↑ BGH WM 1999, 779
  9. ↑ BGH NJW 1985, 2941
  10. ^ BGH, judgment of March 25, 2004, Az .: VII ZR 453/02 = BGH WM 2004, 1079
  11. ↑ BGH WM 2005, 268
  12. ^ Karl Heinz Güntzer / Peter Hammacher, Handbook of Order Processing , 2007, p. 227
  13. ↑ BGH NJW 1984, 2456 , 2457
  14. ↑ BGH NJW 1997, 1435
  15. ↑ Friedrich Graf von Westphalen / Brigitta Zöchling-Jud (eds.), The bank guarantee in international trade , 2014, §§ 675, 670 BGB, marginal no. 113
  16. ↑ BGHZ 139, 325 , 329
  17. ↑ for delimitation cf. BGH WM 1998, 333 , 334
  18. ^ Karl Heinz Güntzer / Peter Hammacher, Handbook of Order Processing , 2007, p. 240
  19. ^ Siegfried G. Häberle, Handbook of Foreign Trade Financing , 2002, p. 899
  20. ↑ BGH BauR 1988, 220 , 224
  21. ^ Andreas Schlüter, Management and Consulting Contracts , 1987, p. 180