Еfimova L.G. Legal Nature of an Independent (Bank) Guarantee

DOI: https://doi.org/10.15688/lc.jvolsu.2018.4.12

Lyudmila G. Еfimova, Doctor of Sciences (Jurisprudence), Professor, Head of Department of Banking Law, Moscow State Legal University named after O.E. Kutafin, Sadovaya-Kudrinskaya St., 9, 125993 Moscow, Russian Federation, This email address is being protected from spambots. You need JavaScript enabled to view it.

https://orcid.org/0000-0002-9777-5261

Introduction: in the present article the author reconsiders a view of the legal nature of an independent (bank) guarantee taking into account the changes made in § the 6th chapter 23 of the Civil Code of the Russian Federation, change of positions of jurisprudence, and generalization of doctrinal disputes again. Methods: the methods of comparative legal analysis of the normative material andother methods which are traditional for the theory of criminal law are used in the study. As a result of the carried-out analysis the author has drawn several theoretical conclusions.
First, the author proves that the independent (bank) guarantee can be both the unilateral transaction, and the contract depending on requirements of the legislation and desire of the parties. Further limits of independence of a guarantee of the provided obligation are defined by the author. In particular, the problem of collecting the full sum of an independent (bank) guarantee at partial execution of the main obligation is subjected to the analysis or in case of payment of a penalty and/or losses by the main debtor in favor of the beneficiary.
Secondly, the author draws a conclusion about that, the obligation of the guarantor is abstract, and the transaction on issue of the bank guarantee is causal.
Thirdly, the author believes that the obligation of the guarantor can be a liability, or not have monetary character depending on an execution subject (the money or things determined by patrimonial signs). 
Fourthly, the author believes that the counterguarantee represents the extradition treaty of the bank guarantee according to which the issuing bank gives an assignment to the executing bank on its own behalf to undertake according to the bank guarantee before the beneficiary and also assumes liability to refund all expenses of the executing bank connected with it. Taking into account stated, the specified contract on provision of a guarantee (counterguarantee), can be qualified as a kind of the commission agreement. Conclusions: the author has drawn a conclusion that the mechanism of a counterguarantee includes several contracts on provision of a guarantee: between the principal and issuing bank and between issuing bank and the executing bank.

Key words: independent guarantee, bank guarantee, counterguarantee, legal nature.

Citation. Еfimova L.G. Legal Nature of an Independent (Bank) Guarantee. Legal Concept, 2018, vol. 17, no. 4, pp. 85-95. DOI: https://doi.org/10.15688/lc.jvolsu.2018.4.12

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