Khadeeva M.V. Termination of Independent Guarantee: Some Problems and Ways of Their Sovling
DOI: https://doi.org/10.15688/lc.jvolsu.2017.4.16
Mariya V. Khadeeva, Head of the Division of Legal Support of Methodology of Credit and Trade Financing of Legal Management, Public joint-stock company “Rosgosstrakh Bank”, Postgraduate Student of the Department of Banking Law, Kutafin Moscow State Law University, Sadovaya-Kudrinskaya St., 9, 123286 Moscow, Russian Federation, This email address is being protected from spambots. You need JavaScript enabled to view it.
Introduction: the article is devoted to the problem of termination of obligations under independent guarantee for the reasons not directly provided by Art. 378 of the Civil Code of the Russian Federation. For this purpose, the author examines a number of theoretical and practical problems the banks experience in connection with the imperfection of the legal regulation of the termination grounds for independent guarantee. By applying the scientific methods, primarily, the method of system analysis, the author identifies a number of issues related to the termination of independent guarantee due, in particular, to lack of judicial practice. Results: according to the author, the termination of bank guarantee, for the grounds not expressly provided for by clause 1 and clause 2 of Art. 378of the Civil Code of the Russian Federation, is possible, but it is associated with some peculiarities. The termination of independent guarantee is possible for the general grounds for termination of obligations specified in Chapter 26 of the Civil Code of the Russian Federation. The inclusion in th e bank guarantee the termination clause on the grounds other than those provided by Clause 1 and Clause 2 of Art. 378 of the Civil Code, is complicated by some circumstances, including the lack of a formed judicial practice on this issue. It seems that this is possible according to paragraph 4 of the Resolution of the Plenum of th e Supreme Arbitration Court of the Russian Federation of March 14, 2014 No. 16 “On Freedom of Contract and Its Limits” and the content of Art. 378 of the Civil Code of the Russian Federation. The law does not prohibit the conclusion of the guarantor ’s agreement with the beneficiary before granting independent guarantee, which stipulates the specific circumstances upon which the independent guarantee may terminate and include in its text th e grounds for termination stipulated in the relevant agreement, but not directly listed in Art. 378 of the Civil Code of the Russian Federation. Paragraph 4 of Art. 368 of the Civil Code also allows the term of reduction or increase in the amount of the guarantee when a certain period or a certain event occurs, which can be regarded as a cancelable condition (clause 2 of Art. 157 of the Civil Code of the Russian Federation). Thus, it can be assumed that in the event of the certain circumstances that entail a reduction of obligations under the guarantee to zero, the obligation under it can be terminated. Conclusions: in connection with the lack of judicial and law enforcement practice and misunderstanding by the participants of the civil turnover of the freedom limits of determining the terms of transactions, the author offers the inclusion in the Civil Code of the provision similar to what is contained in the Uniform Rules for Guarantees on Demand (URGD No. 758): the effect of independent guarantee is terminated “if there is no amount left that may be paid according to the guarantee”.
Key words: independent guarantee, bank guarantee, termination of obligation, beneficiary, freedom of determining the conditions.
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