large number of property transactions require performance guarantees.This can be a pledge, guarantee, liquidated damages and other types of support provided by the legislation.The above methods are characterized by the degree of exposure, methods of achieving the goal.
Determination
Guarantee - is one way to ensure that the debtor's obligations guarantor.It is used to reduce the likelihood of dissatisfaction with the interests of the lender.Guarantees and warranties are made by the contract, in which the third party agrees to be responsible to the creditor for the performance of the borrower obligations (Art. 361 of the Civil Code).The measure applies in the event of the debtor of the deal.The amount of liability is governed by the same document.Before making changes to the Civil Code is a contract which the guarantee was applied to future obligations.This issue caused a lot of disputes.Now, this is an option only if the contract will be clearly spelled out the amount, within which the guarantor would be liable.
Banks' claims on guarantors
Basic requirements are simple:
- age: at least 21-23 years, at the end of the contract period, a person does not have to reach 55-60 years;
- permanent registration in the region of processing the loan;
- stable income for the previous 6 months;
- solvency (calculated on the basis of required payments based on the size of the monthly payment to the bank) - should not exceed 30% of the income of the guarantor.
most often in the role of guarantors are the relatives and friends.But some banks, for fear of fraud, exclude such a possibility of credit conditions.When it comes to the provision of guarantees for the obligations of the legal person, as the guarantors may be other businesses.But this role can not claim non-governmental organizations and government agencies.
Guarantee Agreement
requirements specified in the Civil Code does not allow to conclude an agreement between the debtor and the guarantor.Parties are the lender and the guarantor.The agreement is one-sided, consensual.It creates additional accessorial liability.Bring to justice can only be a guarantor in the event of default by the debtor of the deal.Accessory obligation to limit the validity of the primary, even if the document is not the exact date.His assignment can not neutralize the guarantee agreement (Art. 384 of the Civil Code).
maintenance of the agreement:
- the name of the creditor;
- name of the surety;
- extent of the obligation;
- the name of the borrower.
Restrictions
Although GC is not registered circle of persons who may act as a guarantor, arbitration practice has shown that in some cases the contract may be revoked.This is acceptable if the guarantor act:
- state enterprises that use funds for specific charter purposes;
- departments, ministries, authorities of municipalities.
Guarantee Agreement shall be in written form and must be signed by the borrower, the lender and the guarantor.
responsibility of the parties
task guarantor, at first glance, is simple.He shall be responsible for repayment of the loan, if the payer fails to meet its obligations.The right of the bank to demand money from the guarantor specified in Art.363 of the Civil Code.
Joint and several liability means that the guarantor and the debtor is liable for the obligations equally.That is the claim can not be satisfied with just one party.Vicarious liability means that the surety requirements imposed only if the debtor has no assets.This option is more acceptable to the guarantors.Lender will first have to take the time to prove the insolvency of the borrower.And if he starts to hide, then do it would be virtually impossible.And that means, and to make any demands to the guarantor bank can not.Therefore, this scheme is used very rarely.
The document should be clearly stated exactly what the losses are compensated by the guarantor:
- principal;
- interest for use of funds;
- penalty;
- legal costs.
If the surety contract sample which can be taken from a bank employee at the time of the decision, is a credit institution, it is likely there will be spelled out that the losses were uncovered and liquidated damages shall be reimbursed by the guarantor.In other cases, the most commonly used scheme partial compensation, ie the payment of principal only.
Another point that is worth paying attention to: for violation of terms of payment of the debt the customer generated "negative" credit history.But in the case of the guarantee to the black list with the borrower gets a guarantor.The agreement entered point on which his data is transmitted to the credit bureaus.Therefore, if the borrower violates the terms of the transaction, it spoil the reputation of not only themselves, but also its guarantor.But that's not all.The Guarantor will not be able to issue even a small loan from the bank, while he acts as a guarantor.
Disclaimer
Guarantee - a unilateral commitment.According to Art.364 of the Civil Code, the guarantor may oppose the claims filed, but to give them their own, he has no right.Creditors' claims may be brought if the broken term use of funds, the borrower will receive less money.To recognize the transaction invalid only in the courts.
After guarantor answered all the obligations of the debtor, it receives the documents on the basis of which may present a regressive claim.If the guarantor of the obligation fulfilled, satisfied by the borrower, it can recover the money from the bank (Art. 366 of the Civil Code).
Indemnity Guarantee
individual stops if:
- obligation fulfilled;
- to the contract was amended to increase the liability of the guarantor, which has not been agreed with him;
- debt has been transferred to a third party, for which the surety does not want to answer;
- lender refused to make demands;
- debtor died;
- expired guarantee.The contract period of its validity may be silent.Then obligations terminated 12 months after the date of their execution, if during this period the bank has not sued the guarantor.It may be a different situation.Ability to set the period of execution of the principal obligation is not, and the contract does not stipulate a clear choice.Then the guarantee will be stopped after 2 years from the date of signing the contract, if during that time will not be sued;
- loan agreement invalid.According to Art.329 Civil Code, the surety has the character of accessory obligations, that is, it can not exist separately from the main.If the court finds that the borrower owes the bank nothing, then the guarantor to make any demands impossible.
should also discuss the issue of inheritance.According to the interpretation of the Supreme Court, the heir should be responsible for the obligations of the deceased guarantor to the creditor only in the value of the received property.The rest of the debt is not enforceable.If the heir refuses to come into its own, the debts of the deceased is not subject.
Types
Personal guarantee on the loan is banking and property.Their main difference lies in the fact that in the second case, the contract is prescribed a specific collateral.In turn, the bank can provide the loan funds without a preliminary analysis of the client's solvency.But this option is most often used when issuing entity Express credit.But if the mortgage is issued, or it comes to buying a car, the lender will carefully examine the financial position of guarantors.The latter may be a few.Most often this act as relatives or close friends of the borrower.
guarantee, collateral or guarantees may be required for a small amount of the loan if:
- the customer is not enough income to cover the amount of the debt;
- borrower had repayment problems in the past;
- client already has credit obligations.
Guarantee - this "insurance" of the bank from the bad borrower.Therefore, this place can claim only the person whose level of income will be sufficient to cover the principal and interest on the loan.
Rights guarantor
- to object to the requirements of the bank, if he violated the terms of the contract, for example, amended without the consent of the guarantor.
- take away the right to claim compensation from the primary borrower, if the debt was repaid guarantor.This operation is made contract concessions.The Bank is obliged to provide documents that prove that the debt was repaid by the guarantor.
- demand from the principal debtor repayment including interest, fines, court costs, as well as compensation for moral damages (Art. 365 of the Civil Code).
Conclusion
Guarantee - is a way to ensure that the obligations under which the third party agrees to return part or all of the debt to the lender if the borrower will not be able to do it yourself.Most often, the need for this service arises when you make a mortgage or car loan.A person who acts as a guarantor of the transaction must be very sober assessment of their financial situation.Unilaterally abandon the obligations it will not turn.
