What is a bank guarantee in simple terms: what is it for. Bank guarantee to ensure the performance of the contract. Types and conditions of bank guarantees Why do you need a bank guarantee

Each time, concluding a contract, the customer runs the risk that the contractor will perform poor-quality work or not perform it at all. To insure against such cases, he must prescribe contract security. Read on for more details on how to do this.

For whom

A performance bond is usually required in public procurement contracts. Before entering into an agreement, the winning bidder must prove his trustworthiness. How to do it? It is necessary to provide a deposit in the form of 30% of the contract value, which will be returned to the contractor upon completion of the work. Such a bank guarantee to enforce the contract can save a firm that does not have extra millions in its accounts. How to arrange this operation correctly?

Collateral types

Pledge of funds - before the conclusion of the contract, the supplier must transfer to the customer's account the amount of money in the amount established by the tender documentation. This amount is "frozen" until the end of the agreement. But this is not a deposit, interest on the balance is not charged.

A bank guarantee to ensure the performance of a contract is a written application by the bank to fulfill all the obligations of the principal. If the contractor fails to complete the task, the bank will transfer the amount specified in the contract to the customer. The guarantee is subject to mandatory registration in the register. The percentage for its maintenance is usually 2-5% of the amount of security.

The essence of a bank guarantee

The winning company of the state tender is obliged to provide security before the conclusion of the contract. Otherwise, it will be considered that she evades signing documents. The terms of the bank guarantee provide that in case of non-performance of the contract, the customer can apply to the bank for payment of money. The credit institution charges the amount from the executor, who must return the funds to the bank or provide collateral.

Types of bank guarantees

Tender. Bidders must provide bid security in the form of a guarantee (if the auction was not held in electronic form - by transferring funds to the customer's account). It is a confirmation that, in case of victory, the bidder will not refuse to conclude a contract.
A bank guarantee to ensure the performance of the contract protects the buyer from unscrupulous counterparties. If the terms of the contract are fulfilled poorly or the contractor refuses to provide the goods, the bank will reimburse the funds to the injured party.
Advance money back guarantee. If the initial price of the contract is more than 50 million rubles, then the customer must prescribe a security for the execution of the contract in the amount of 10-30% of the initial cost (NMTsK), but not less than the advance payment. If the prepayment exceeds 30% of the NMTsK, then the security amount is equal to the advance.

Legislative regulation

How is a bank guarantee regulated? 44-FZ of 04/05/13. It spelled out new legal relations in the field of public procurement. The document was created on the basis of a detailed analysis of the current procedure. The new rules meet the needs of the state and have greatly improved the usability of the law.

To ensure the fulfillment of obligations, the winner of the tender can transfer funds to the customer's account or provide a guarantee. The actions of the auction organizer are also limited by the legislative framework. The requirements for the application must be specified in the tender documentation.

A bank guarantee is a convenient way to secure. The contractor needs to study the requirements in detail. If the guarantee provided does not meet them, the customer has the right to refuse to conclude the transaction.

Term of the bank guarantee

Tender security must be valid for 2 months after the end of the acceptance of applications. The guarantee of the contract and the return of the advance must be 1 month longer than the period of the contract. The countdown usually starts from the moment the documents are signed, unless otherwise specified in the contract.

Warranty Features

A credit institution or an insurance company acts as a guarantor for the transaction.
The principal pays a fee for issuing security.
The bank guarantee cannot be revoked under any circumstances.
The right of claim belonging to the beneficiary cannot be transferred to a third party.

The size

The maximum and minimum amounts of collateral are predetermined by the customer and specified in the documentation. The rate is calculated as a percentage of the initial maximum price (IMCC). It varies in the range of 0.5-30%, but should not be less than the advance. Let's consider in more detail. What is a bank guarantee?

44-FZ provides that the security of the tender must cover 0.5-5% of the NMCC. If the price is less than 1 million rubles, then 1%. The maximum threshold can be reduced to 2% in the cases prescribed in paragraph 15 of the 44-FZ.
The performance guarantee should cover 5-30% of the NMCC. If the initial cost is more than 50 million rubles. - 10-30%. If the terms of the contract provide for an advance payment, then the amount of the guarantee cannot be less than the advance payment.
If the supplier's application has decreased by 25%, the supplier may issue a security with a 1.5-fold excess of the amount prescribed in the contract, provided that it does not exceed the amount of the advance.
The advance payment guarantee must exceed the amount of the advance payment.

Exceptions

In some cases, the bidder is exempt from providing a guarantee. For example, if the supplier is a state or municipal institution, no contract security is required. Customers can release contractors from providing security if:

the contract amount is less than 100 thousand rubles;
the purchase of cultural values, weapons;
the contract is with a monopolist.

Requirements

Not every credit institution can provide financial security to the contractor. Banks issuing bank guarantees are subject to inclusion in the list of organizations that meet the requirements for tax purposes. The register is maintained by the Ministry of Finance and the Central Bank. In 2016, it included 301 credit institutions. These are banks with a stable position that comply with all regulations, have a license to carry out such operations and own capital in the amount of more than 1 billion rubles. The effect of a bank guarantee is confirmed by its inclusion in a special register. Collateral not properly registered will not be accepted by the customer. Another requirement is that the guarantee must be irrevocable, that is, under no circumstances will the bank be able to revoke it.

The written commitment of the bank must include a list of bank guarantees and the amount of security. If the deadlines for the execution of the contract are delayed, the bank must pay a penalty of 0.1% for the day the performance of obligations is missed. This condition must be written in the contract. It also contains the obligations of the contractor, the validity period of the document, a list of documents provided by the customer.

Advantages and Disadvantages of a Warranty

If the security is carried out by direct transfer of funds to the customer's account, then the contract will be concluded faster. But then the contractor will have a large amount withdrawn from circulation for an indefinite period of time (the transaction may last several years). Not every organization can afford it. A bank guarantee helps to solve this problem. Its design takes a lot of time. The service is not cheap. But the registration of the guarantee allows you to avoid large investments.

Getting a guarantee

There are several ways to issue a guarantee. Depending on the urgency of the application and the amount of the contract, banks offer such methods of obtaining security.

Electronic

A bank guarantee to ensure the performance of a contract, application or advance payment is issued through the TenderHelp service. It is enough to collect and upload documents, register on the site and send an application to the bank. Terms of consideration of documents depend on the NMCC:

up to 5 million rubles - 3 hours;
up to 15 million - up to 12 hours,
more than 15 million - 3 days.

The bank guarantee is also provided in electronic form.

Classical

If we are talking about issuing collateral for a large amount (more than 20 million rubles) or there is a limit for issuing guarantees, then all documents will have to be transferred to a bank employee. This method is also used by organizations that do not have expedited warranty programs in their product line.

Accelerated

This method is used by banks that wish to attract new customers. Special programs contain clear conditions for "entry", a fixed list of documents, coordinated actions between departments. Under such conditions, the term for processing documents does not exceed 5 days, but transactions are also considered within 10-15 million rubles.

Additional terms

The deposit is requested if the company has an unsatisfactory financial condition or the turnover does not meet the requirements of the guarantee. Without collateral, representatives of small and medium-sized businesses can receive 500-700 thousand rubles. But the guarantee of the owners of the company is a prerequisite for all banks.

Opening a bank account and conducting turnover on it for some organizations is one of the key conditions. If it is not fulfilled, then the client can count on an amount of no more than 10-15 million rubles.

Documentation

Consider the basic documents required for issuing a guarantee. This list is not exhaustive, as each bank may have its own requirements for the client.

Warranty statement.
Information about the applicant company.
Copy of statutory documents (TIN, OGRN).
Extract from the Unified State Register of Legal Entities received no more than 30 days before the application was submitted.
Copies of the order on the appointment of the head.
Copies of powers of attorney.
Accounting statements: balance sheet and income statement; for individual entrepreneurs - a tax return under the simplified tax system, an extract from the income ledger, a 3-NDFL declaration).
Tender documentation, purchase number, protocol on recognition of the winner, draft contract.

Some of the documents, for example, an extract from the Unified State Register of Legal Entities, must be up to date. Therefore, active bidders should regularly update the main package of documents.

How to choose a bank?

As mentioned earlier, not every bank can provide guarantees. Therefore, having studied the terms of service at a credit institution, you need to check whether it is listed in the register approved by the Ministry of Finance. When choosing a particular institution, you should also pay attention to the region of its presence. Even if a credit institution issues guarantees electronically, it is not a fact that it cooperates with clients from other areas.

A bank guarantee allows you to protect yourself from the risks associated with non-fulfillment of obligations by one of the parties to the contract - a written obligation of the bank to pay the creditor the amount in case of improper performance by the debtor of his contractual obligations.

When concluding a deal, we always take risks, because one of the parties may refuse to fulfill its obligations.

As a result, such a refusal (in some cases) entails losses, for example, financial ones. A bank guarantee will help protect yourself. In this article, we will give the concept of a bank guarantee, and also tell you how they can be useful.

The concept of a bank guarantee

What does the concept of a bank guarantee issued by a bank include, what kind of document is this and in what cases is it applicable? In order to understand this, the term must be defined. A bank guarantee is a written obligation of a bank to pay a sum of money to a creditor in case of improper performance by the debtor of its contractual obligations.

Types of bank guarantees

Guarantees are one of the most demanded products in the financial services market today. For the convenience of users, they are classified by scope, so you need to know what types of such documents exist.

In order to fully understand the principle of action, you need to know how the customer (beneficiary) should present claims for payment of compensation under the guarantee to the bank (guarantor), whether the bank can refuse them, and how the contractor (principal) should act in this whole situation.

Consider the procedure for submitting a claim for payment under a bank guarantee, the obligations and rights of the parties.

The recovery procedure begins from the moment the beneficiary considers the principal to have failed to fulfill any of his obligations under the contract. Such obligations must be spelled out in advance in the tender documentation, otherwise the guarantor will have the right to reject the customer's claims.

So, the customer who has suffered damage must collect the following documents before submitting an application:

A contract signed with the contractor with all applications.
Bank guarantee.
The estimated value of the reimbursement amount.
Documents proving the adequacy of the required amount of damage, if the amount of the penalty is not specified in the text of the contract.

This package of documents must be submitted to the guarantor bank, supplemented by a written application demanding the payment of funds under a bank guarantee.

It is very important not to delay the collection of documentation and the submission of a written request, because if the guarantee (which lasts 1 month longer than the contract completion date) expires by the time the application is submitted, then there will be no payment for it even if the beneficiary's requirements are fair.

The term for consideration of the claim, as a rule, is set in advance. If this was not provided for, then financial institutions usually consider the application within 2-5 business days, increasing this period by no more than twice, if the complexity and intricacy of the case so requires.

The guarantor, who has received a demand for payment, is obliged to notify the principal about it, providing him with a copy of the application and all attached documents. Thus, while the bank is considering the application, the principal has time to study the documentation and, if it is not true, provide the guarantor with additional papers. The financial institution itself does not assess the legal significance of documents. The guarantor has the right to refuse the beneficiary in 2 cases: if he submitted a claim after the expiration of the guarantee or if the specified violation does not fit into the terms of the guarantee obligations.

The second case is quite controversial, so the customer retains the right to collect additional documents and evidence of a violation by the contractor of the main obligations included in the conditions. The Guarantor will be required to consider such a second application.

If the beneficiary considers that the guarantor bank unfairly refuses to reimburse him, then he has the right to go to court, attaching all the papers, statements and official responses of the bank to the appeal.

What, then, is required of the principal in all these regulations, in addition to checking copies of documents?

The contractor will only be required to act when the guarantor (or appropriate court decision) recognizes the beneficiary's claims as valid and pays the money on them. After the expiration of the guarantee, the bank will issue a recourse to the principal, and he will be obliged to compensate the guarantor for losses. Some banks, in order to secure their interests, require a deposit, a deposit, or an application for suretyship in advance, and then use these funds to cover their own losses.

To obtain a bank guarantee without collateral and surety, we advise you to contact RosTender. !

Content

Any transaction carries a certain risk, because the other party may not fulfill its obligations. In order for companies to protect themselves from serious losses, it is worth issuing a bank guarantee. This written commitment is often used when participating in tenders, concluding contracts, transporting goods abroad, and in other cases.

What is a bank guarantee

Many are concerned about the question of what such a written obligation implies as a guarantee received from a financial institution. The definitions of the term are as follows - this is a bank guarantee that guarantees the creditor a cash payment if the debtor violates the contract, does not pay for the goods, and so on. For example, if the contractor does not start work, then the customer can submit a written claim to the bank for compensation in order to recover their losses.

An independent guarantee is a unilateral transaction that can be provided at the initiative of the guarantor by any commercial enterprise. A guarantee can be issued by all legal entities. The difference between a bank guarantee is that it is issued by specific financial organizations on the basis of a license (Sberbank, Alfa Bank, VTB 24 and others). It provides for the principle of urgency and cannot be withdrawn as an independent one. The price of such an obligation is calculated taking into account the NMCC and other factors.

How it works

Many organizations do not understand why a bank guarantee is needed. Companies that have drawn up such an agreement are perceived by the beneficiary as more loyal, have priority over others. Financial institutions are ready to act as a guarantor only for reliable and trusted organizations that have proven their solvency. During tenders, customers will first of all consider potential executors who have a bank guarantee.

A bank guarantee is not a form of payment, but a tool that ensures the fulfillment of the obligations of its client under an agreement between the customer and the contractor or supplier. The scheme of its work is as follows:

The debtor applies to a financial institution that provides this service. A written request is submitted to the bank describing the main points of cooperation between the guarantor and the principal.
With a positive decision of the financial institution, the bank becomes a guarantor and an agreement is concluded between the parties.
The next step is the issuance of a written obligation, according to which the bank assumes responsibility for the client's debts, if the latter fails to fulfill the terms of the transaction with the customer. The document includes information about the terms of payment, terms, attached papers.
If the principal, for some reason, becomes a debtor (does not return the advance for work, does not pay for goods already delivered, etc.), then the creditor (beneficiary) goes to the guarantor with a demand for damages.
The bank checks the terms of the issued obligation, if it has not expired, then pays the beneficiary the amount specified in the agreement with the debtor. After that, the period of validity of the guarantee issued by the bank automatically ends, even if it has not expired according to the conditions.

Who is the guarantor

At the request of the debtor (principal), the obligation is issued by a financial institution. The bank is a guarantor under a bank guarantee, which assumes the provision of a credit line, the payment to the beneficiary of uncovered expenses or the amount, the amount of which is negotiated when the agreement is formed. The Central Bank of the Russian Federation regularly provides a list of accredited institutions that provide this service (PJSC Sberbank of Russia, VTB 24 and others). If earlier banks and insurance organizations could act as guarantors, today, according to the law, the UK does not have such powers.

Principal and beneficiary - who is it

Under the terms of the contract, this type of security includes three parties. In addition to the guarantor, the principal and the beneficiary are involved in the process. If the execution of the contract by the contractor failed due to his fault, then the beneficiary (creditor, tax authority, customs service, supplier) has the right to receive funds from the bank. The principal in a bank guarantee is a borrower under an agreement secured by an obligation of a financial institution. This person can be a service provider, tenant, contractor, and others.

Types of guarantees

In the modern financial services market, a bank guarantee is one of the most demanded products. To make it easier for users to understand these regulatory documents, they are divided into groups according to their areas of application. The type of service depends on its cost, features of provision, justification for registration, the amount as a percentage of the NMTsK, and so on.

Tender

The most popular is a product that is provided by banks as a security for the participation of the principal in bidding, competitions, auctions, tender drawings. The bank guarantee of the offer ensures the fulfillment of the obligations of the winner of the tender under the contract with the customer. Its size is calculated according to the formula: 5% of the NMTsK (amount of the contract). The term of the product is limited to the conclusion of the transaction between the winner of the tender and the customer.

Payment

Another case when this financial product may be required is a purchase. As a rule, these are wholesale deliveries and so on. For example, the supplier sent the goods to the customer without prepayment. If the client does not pay for the delivery received, the seller will apply to the bank and receive damage. A payment guarantee is a tool to cover the risks of the supplier from non-payment of funds by the buyer. The service is used for commodity loans and deferred payments.

To enforce the contract

The company that won the auction presents this document to the customer. If the contractor has security, they conclude a state contract, a supply agreement, etc., since if the terms of the transaction are not fulfilled, a penalty will be collected from him. Bank guarantee, as a way to ensure the fulfillment of obligations, is calculated according to the formula: 10% of the NMTsK.

Refund of advance payment

This option is provided by the contractor to the customer's company, if the contract provides for an advance for the work. The amount of prepayment reaches 30% of the cost of the entire order. A money back bank guarantee compensates for the loss of the customer when the contractor refuses to perform his work. In addition, the service protects the customer from misappropriation of the advance by the contractor.

Customs

This financial product is designed for companies that import goods abroad. A bank guarantee for the payment of customs duties is designed in case the principal falls under sanctions due to violations of the rules for crossing the border, transportation of goods, non-payment of mandatory fees. The document is submitted to the customs control authorities. The service is valid for 1 year.

How to get a bank guarantee

A potential client goes to the bank for help when he needs a guarantee to a future partner or customer. In Russia, the issuance of bank guarantees is regulated by the civil code. The Ministry of Finance annually compiles a list of banks that are eligible to provide this product. It is important to note that commitments from individuals, commercial and even government agencies are not legally enforceable.

How to get a guarantee to secure a contract? To do this, the client must:

collect a complete package of necessary papers;
open a bank account;
provide collateral;
draw up a document if the bank decides to enter into cooperation, in about 14-20 days (to reduce the time for the procedure, you can seek the help of professionals).

Decoration

When considering different bidders, organizers prioritize those who can secure a future deal. A contract performance guarantee takes a long time to complete. You can order it yourself or through an electronic broker (the second method is faster). Sberbank and VTB 24 work without intermediaries with clients in this area. To issue a guarantee, you need to perform a series of actions in the following order:

Find a guarantor.
Write an application to the bank.
Submit the required documents.
Wait for the financial institution to verify the solvency of a potential client.
Conclude an agreement.
Draw up a contract with a guarantor.

Treaty

After registration of this financial product, further relations between the parties are regulated by the document. An agreement is an agreement reflected on paper (concluded according to a model). According to it, the bank fulfills the obligations of its client to a third party. The relationship between the beneficiary and the principal is already spelled out in another document (contract for the provision of services, supply of goods, etc.). A performance guarantee proves that the supplier will provide the goods or the buyer will pay for the delivered batch, the contractor will perform the work, and so on.

Documents

A financial institution that vouches for its client to a third party risks incurring losses. Therefore, the principal is carefully checked before the conclusion of the transaction. Banks require the following documents to issue a guarantee:

statement;
TIN (copy);
permits, licenses, certificates faces (copies);
extract from the Unified State Register of Legal Entities;
property documents / lease agreement;
copies of documents of the accountant and company executives;
accounting reports for the current year;
a draft of a future deal to be secured;
if the client is an LLC, then a list of participants with copies of passports.

Security

Some financial institutions offer to buy bank guarantees from them without collateral. However, in reality, banks are not ready to take risks, and require highly liquid collateral from customers. Providing a bank guarantee is an integral part of the design of this product. Moreover, the amount from the sale of the pledge should cover the bank's expenses related to obligations to a third party. The applicant may offer the following:

vehicle;
the property;
products;
stock;
precious metal coins.

Register of bank guarantees

All issued documents are recorded in a single register no later than one day from the date of registration. You can view the data on the website of the Central Bank, it is not difficult to decipher the information. To check a bank guarantee in the register of bank guarantees, you need to find it on the website by the name of the bank, term or other parameters. It is important to do this in order to avoid unpleasant situations with fake papers that seriously affect the reputation of legal entities. faces.

How much does it cost

An important point in the design of this product is the final price. The cost depends on many factors and the tariff plan that is assigned for each area of document use. The commission is calculated taking into account the amount, term of the contract and other parameters in the amount of 2-10% of the NMTsK. The presence of guarantors or collateral plays an important role. Lack of collateral doubles the price. Some financial institutions set a minimum commission, for example, 10 thousand rubles.

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A bank guarantee is an effective and reliable means of minimizing risks in the execution of agreements between counterparties, and therefore it is necessary to pay special attention to the issues of execution of agreements on the provision of bank guarantees.

When concluding contracts between two legal entities, there is a possibility that the requirements of the customer will not be properly met. One of the ways to ensure the proper performance of the contract by the contractor is to provide the customer with security for the performance of his obligations under the contract.

essence such security is to provide one of the parties to the contract (customer) with a guarantee that his order will be executed in full compliance with the terms of the contract, including in compliance with the agreed deadlines. In this way, contract security allows minimizing the risks of the customer. Primarily provisional measures undertaken when concluding government contracts or contracts with large corporations.

Security can be expressed in monetary form(depositing a certain amount of money on the customer’s deposit, which is stored there until the contractor fully fulfills the terms of the contract) or non-monetary(for example, a surety or a guarantee).

At present, when concluding government contracts, such non-monetary forms of provisional measures as insurance or suretyship are no longer used. Accordingly, one option remains - a bank guarantee (or deposit of funds).

bank guarantee- one of the most popular types of interim measures. The meaning of the bank guarantee for the fulfillment of obligations under the contract is that the bank, at the request of the contractor under the contract (principal), provides the customer under the contract (beneficiary) with a document confirming the bank's obligation to pay the beneficiary a certain amount of money in case the contractor fails to fulfill its obligations.

The use of a bank guarantee several advantages for each side:

for the customer under contract a bank guarantee is a security measure for the proper execution of an order, thereby minimizing its risks;
for the performer under contract the provision of a bank guarantee allows you to enter the vast market of state orders and large corporations. The use of a bank guarantee instead of depositing funds on the customer’s deposit allows the contractor not to withdraw funds from economic turnover, but to use them in current activities or place them on a fixed-term bank deposit (as a rule, profit from raising funds in the enterprise’s turnover (rate of return on activity) , and the rate on bank deposits exceeds the amount of the commission paid to the bank for providing them with a guarantee);
for bank,guaranteeing, the advantage is to receive additional non-interest income.

Exists several types of bank guarantees:

tender— a guarantee that the bank that issued the guarantee undertakes to pay the organizer of the auction (beneficiary) the guarantee amount if the participant in the auction (principal) who won the tender refuses to conclude a contract;
proper performance of obligations under the contract- a guarantee that the bank that issued the guarantee undertakes to pay the guarantee amount to the customer (beneficiary) if the contractor (principal) does not fulfill the obligations under this contract at the proper level;
advance payment refund- a pledge that the bank that issued the guarantee undertakes to pay the guarantee amount to the customer (beneficiary), which he previously paid to the contractor (principal) as an advance, if the principal does not fulfill or improperly fulfills his obligations and the contract is terminated;
customs— the type of bank guarantee that is used in the regime of temporary importation of property into the territory of another state (for example, to participate in an exhibition);
judicial- one of the ways to secure a claim, applied at the request of the defendant as an alternative to the seizure of property.

The provision of bank guarantees is regulated by the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation).

Article 368 of the Civil Code of the Russian Federation describes the concept bank guarantee: “By virtue of a bank guarantee, a bank, other credit institution or insurance organization (guarantor) gives, at the request of another person (principal), a written obligation to pay the principal’s creditor (beneficiary) in accordance with the terms of the obligation given by the guarantor, a sum of money upon presentation by the beneficiary of a written demand for its payment ".

Thus, the bank that issued the guarantee is liable for the debts of the principal in the event that he fails to fulfill his obligations under the contract to the beneficiary.

As a rule, a bank guarantee is in writing and is a document signed by the guarantor bank.

Consider an example of a visual text of a bank guarantee issued for the purpose of proper performance of obligations under a contract.

EXAMPLE

Branch of JSC "Bank“ Capital Plus” ”, hereinafter referred to as the Guarantor, represented by the branch director Ivanov I.I., acting on the basis of Power of Attorney No. 12345, hereby informs that he is aware that Lesorub LLC, hereinafter referred to as the Principal, has been recognized as the winner of an open auction in electronic form for the right to conclude a contract for clearing the territory from forest vegetation on the territory of the construction of the Krasnokamensk-Zelenogorsk highway, carried out by Dorozhnik LLC, hereinafter referred to as the Beneficiary, as a result of which a contract is concluded between the Principal and the Beneficiary (hereinafter referred to as the Contract).

The Guarantor, in the manner specified by this Guarantee, ensures the proper performance by the Principal of its obligations to the Beneficiary under the Contract.

This Guarantee and the obligations of the Guarantor under it come into force from the moment of its issuance.

The Guarantor hereby undertakes to pay the Beneficiary funds in an amount not exceeding 350 000 (three hundred fifty thousand) rub., during 5 (five) working days from the moment of receipt of the Beneficiary's written request containing:

allegation that the Principal has breached its obligations under the Contract;
a description of the obligations in respect of which the Principal committed violations.

The following documents must be attached to the written request of the Beneficiary:

duly certified copy of the Contract with all amendments and additions;
claim of the Beneficiary to the Principal about non-fulfillment or improper fulfillment by the Principal of its obligations under the Contract with a demand for their proper fulfillment within a certain period, with documents confirming the receipt of the claim by the Principal;
copies of documents confirming the authority of the persons who signed the written request of the Beneficiary.

A written demand of the Beneficiary for payment under this Guarantee must be submitted to the Guarantor during the term of the Guarantee at the address: Sinerechensk, st. Friendship, d. 15 by registered mail.

The liability of the Guarantor to the Beneficiary is limited to the payment of the amount for which the Guarantee is issued and is reduced by each amount paid by the Guarantor to the Beneficiary under the Guarantee during the term of the Guarantee.

The right to claim under this Guarantee cannot be fully or partially assigned by the Beneficiary to third parties.

Under this Guarantee, the applicable substantive and procedural law is the law of the Russian Federation.

Guaranteed up to 31.12.2014 . The term of the Guarantee may be reduced if, during the term of its validity, the Beneficiary receives a written request for the payment of funds on the terms specified in this Guarantee.

The guarantee is issued in a single copy.

Thus, the text of a bank guarantee contains the name of the principal, the beneficiary, an indication of the contract concluded between them, the amount of the guarantee obligation, its validity period, as well as the procedure for paying the guarantee claim to the beneficiary.

Issuance of a bank guarantee occurs on the basis of an agreement on the provision of a bank guarantee, concluded between the guarantor bank and the principal.

Consider the features that should be considered when concluding this contract. Primarily, bank guarantee agreement must contain the main provisions of the bank guarantee:

type of bank guarantee (guarantee of return of advance payment, guarantee of proper fulfillment of obligations under the contract, etc.);
name and details of the beneficiary;
details of the contract for the fulfillment of obligations under which a guarantee is issued;
bank guarantee format (written, electronic);
form of bank guarantee (standard form of the bank or the form proposed by the beneficiary);
the amount of the bank guarantee;
the currency of the bank guarantee;
the effective date of the guarantee;
expiry date of the bank guarantee.

The guarantee is provided by the bank for paid basis(Clause 2, Article 369 of the Civil Code of the Russian Federation: “For the issuance of a bank guarantee, the principal pays a fee to the guarantor”).

Primarily amount of remuneration for issuing a bank guarantee is set as a percentage of the guarantee amount (it can be just a percentage of the guarantee amount or an annual percentage rate, which depends on the period for which the guarantee is issued), but can also be set in a fixed amount. The parties are free to decide which terms this fee will be paid: in a lump sum, on schedule, until the guarantee is issued or until a certain date.

The guarantee is often issued by a bank under appropriate security(for example, a pledge of real estate or goods in circulation, a guarantee of the founders).

For certain categories of bank customers, various preferences may be provided regarding the registration of collateral. For example, for clients who have a positive credit history and a good financial position, the guarantee may be issued without collateral. In such cases, the bank may charge an additional fee to the principal.

Therefore, the agreement on the provision of a bank guarantee should provide for following points:

the amount of remuneration for issuing a bank guarantee;
the procedure for paying this remuneration;
additional commissions paid by the principal for providing him with a bank guarantee;
the type and value of the collateral issued as security for the guarantee;
the possibility of granting a deferral when issuing security (for example, if a pledge of real estate is accepted as security and a pledge agreement must be registered with state bodies);
the need for collateral insurance.

Bank guarantees are divided into conditional and unconditional (upon request).

Conditional Guarantee means that the guarantor undertakes to make a payment in favor of the beneficiary only upon presentation of certain documents, for example, payment orders confirming the transfer of funds by the beneficiary to the principal as an advance payment under the contract. With an unconditional guarantee payment is made only if there is a written request of the beneficiary.

In our country, a conditional guarantee is most often used, which is reflected in paragraph 1 of Art. 374 of the Civil Code of the Russian Federation: “The requirement of the beneficiary to pay the amount of money under a bank guarantee must be submitted to the guarantor in writing, attaching the documents specified in the guarantee. In the demand or in an annex to it, the beneficiary must indicate what the violation by the principal of the main obligation, in security of which the guarantee was issued, consists of.

In fact, even if the guarantee does not specify the documents that the beneficiary is required to submit when sending a claim to the guarantor, he must still indicate what the principal violated his obligations.

To avoid disputes the text of the bank guarantee must contain a clear list of documents, which the beneficiary is obliged to present to the guarantor upon presentation of the claim.

If an unconditional bank guarantee is issued, the text of the agreement on the provision of a bank guarantee between the bank and the principal must include an indication that the principal agrees with the unconditional form of the guarantee and undertakes to unconditionally reimburse the guarantor for the amount of the payment made within the period specified in the agreement from the moment the bank's demand is received.

If the list of documents that the beneficiary is obliged to submit to the guarantor upon presentation of the demand does not contain documents confirming the authority of the persons who signed this demand, this carries the risk of invalidating it, and therefore, will lead to further disputes between the bank and the principal. Therefore, in the absence of these documents in the list of documents attached by the beneficiary to the demand for payment under the guarantee, it is advisable to include in the text of the agreement a clause stating that the principal does not object to the absence in the list of documents attached by the beneficiary to the demand for payment under the guarantee, and documents confirming the powers of the persons who signed the specified requirement.

If the guarantor satisfies the beneficiary's claim, the guarantor shall transfer the right to claim against the principal for the claims fulfilled under the guarantee. This is called the guarantor's recourse claims against the principal and is described in paragraph 1 of Art. 379 of the Civil Code of the Russian Federation: “The right of the guarantor to demand from the principal, by way of recourse, reimbursement of the amounts paid to the beneficiary under a bank guarantee is determined by the agreement between the guarantor and the principal, in pursuance of which the guarantee was issued.”

The amount of compensation by way of recourse cannot exceed the amount of money actually paid by the guarantor to the beneficiary.

As mentioned above, the contract provides for a period during which the principal must reimburse the guarantor for the amount of the payment made. However, for a bank, issuing a guarantee is a banking operation. without distraction cash, and the payment of the payment to the beneficiary - the transaction with distraction Money.

To divert funds in order to pay the beneficiary, the bank owes this amount fund, that is, draw on the side (for a fee). Therefore, the agreement on the provision of a bank guarantee indicates separate fee, expressed as a percentage per annum, paid by the principal to the bank if the bank made a payment in favor of the beneficiary, as well as penalty amount accrued in the event that the principal fails to fulfill his obligations to reimburse the guarantor for the amount of the payment made.

In order to minimize the risks of the guarantor bank, the agreement on the provision of a bank guarantee may provide for the obligation of the principal to conclude consent agreement(previously given acceptance) to the guarantor bank to debit funds from their accounts opened with this bank, without their own order, in order to repay urgent and overdue debts under an agreement on the provision of a bank guarantee.

Also, this agreement may contain principal obligation maintaining turnover on accounts in the guarantor bank in certain volumes, in order to ensure the availability of sources of repayment.

Conclusion

A bank guarantee is the most convenient and reliable mechanism for protecting the interests of the customer. It allows executors to ensure participation in contracts with minimal collateral costs, and the guarantor bank to receive additional income. In order to minimize disputes arising between the guarantor bank and the principal, it is reasonable to agree on all the conditions for providing a guarantee at the stage of concluding an agreement on its provision.

A. F. Garifulin, loan officer