Bills of exchange guarantee
The bill guarantees (also Wechselaval ) is taking over the changing legal liability by switching guarantor for the payment of the sum payable from a change leading to a joint liability of the exchange guarantor for another parties liable ( drawee , issuer or endorser leads).
Legal issues
The exchange guarantee ("exchange guarantee") is regulated in Art. 30 ff. Of the Exchange Act (WG) of July 21, 1933 (RGBl. I, p. 399). Thereafter, the guarantee must be attached to the bill of exchange or its attachment in writing with a personal signature ( Art. 31 WG). Usually this is done by adding the words “as surety”, “per aval” or an equivalent formulation. It is not necessary for the guarantee by bill of exchange to state for whom it is assumed (Art. 31 Para. 4 WG). The mere signature without additional information on the front of the bill of exchange is then irrefutable as a guarantee for the exhibitor (Art. 31 Para. 3 WG). The mere signature on the back of the bill of exchange, on the other hand, counts as a blank endorsement ( Art. 13 Para. 2 WG). The emergence of Avalhaftung sets a contractual legal Begebungsvertrag advance. A bill surety is liable in the same way as the one for whom it has taken it over. If a claim is made against the bill surety, he acquires the claims from the bill by virtue of the law ( legal session ; Art. 32 WG).
Apart from the designation and the security purpose, there are no other similarities between the guarantee by bill of exchange and the guarantee of the BGB . It is a special kind of liability under the law of bills of exchange . Unlike the surety of a guarantee, the surety by bills of exchange is jointly and severally liable alongside the other parties obliged to bills, whereby its liability is independent of the main liability and is independent of its content ( Art. 47 WG). In addition, the bill surety is liable without being entitled to the objection of the advance action or other material objections of the main debtor. In contrast to the guarantee, the guarantee by bill of exchange is only formally ancillary , since the guarantee by bill of exchange is only not liable if the main debt is null and void due to a formal error ( Art. 32 Para. 2 WG).
Economical meaning
The bill guarantee is rare in Germany, as it proves that the beneficiary of the bill (the Avalat ) does not have a perfect credit rating . Today it is used almost exclusively in the form of the so-called bank guarantee in commercial transactions. In this case, a bank guarantees a bill debtor for a fee (the guarantee commission ). A bank guarantee serves to improve the creditworthiness of a bill of exchange and is a loan . This bill guarantees belongs to § 1 para. 1 sentence 2 no. 8 Banking Act to the banking business . For the bank, this is a so-called contingent liability , as a payment obligation ( liability ) only arises if the guaranteeing bank is called upon. Bills of exchange guarantee in banking today only occurs in the context of foreign trade financing (see letter of credit , documents against acceptance of a bill of exchange ).
International
In Austria , the guarantee on bills of exchange regulated in Art. 32 Bill of Exchange Act (Austria) is not ancillary to the guarantee under civil law. This does not mean that the liability of the bill surety is completely independent of the existence of a principal debt, but only that the declaration of commitment of the bill surety is also valid if the liability for which the bill surety has vouched for a reason other than a formal error is void. It occurs more frequently in particular when medium-sized exporters need an export credit . Then the Republic of Austria is liable for a bank loan from the house bank to the exporter within the framework of the bill guarantee. The house bank, in turn, can refinance itself cheaply with the Oesterreichische Kontrollbank on the basis of the bill guarantee.
In Switzerland , the guarantee by bill of exchange is regulated in Art. 1020 ff. OR , whereby the information for whom the guarantee is given does not need to be explicit. The provisions of the OR are congruent with Articles 30–32 of the German Law on Exchange.
See also
Individual evidence
- ^ BGH WM 1978, 83, 85
- ↑ Lutz Sedatis, Introduction to Securities Law , 1988, p. 125
- ↑ Wolfgang Zöllner , Wertpapierrecht , 14th edition 1987, p. 119
- ↑ BAFin, January 8, 2009, Notes on the facts of the guarantee transaction
- ^ OGH , judgment of April 5, 1967, Az .: 3Ob7 / 67
- ↑ Ulrike Zabini / OeKB-Exportakademie, November 2012, bills of exchange guarantees , p. 3 ff. ( Memento of the original dated December 28, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF; 342 kB)
- ^ Federal Supreme Court , judgment of June 19, 1951 = BGE 77 II 250
