A surety is ... Types of sureties. Surety agreement

A large number of property transactions requires a guarantee of performance of obligations. This can be a pledge, surety, penalty and other types of security that are provided for by law. These methods differ in the degree of impact, methods of achieving the goal.

Definition

A surety is one of the ways to ensure the obligations of the debtor by the guarantor. It is used to reduce the likelihood of dissatisfaction with the interests of the creditor. The guarantee and surety are drawn up in a contract in which the third person assumes the responsibility to answer to the creditor for the performance of the borrower's obligations (Article 361 of the Civil Code of the Russian Federation). This measure is applied in case of violation by the debtor of the terms of the transaction. The scope of liability is governed by the same document. Before the introduction of amendments to the Civil Code, contracts were concluded in which the guarantee was imposed on future obligations. This question caused a lot of controversy. Now such an option is possible only if the contract clearly specifies the amount within which the guarantor will be liable.

Banks' requirements for guarantors

The basic requirements are simple:

• Age: a minimum of 21-23 years, for the period of the termination of the contract the person should not reach 55-60 years;
• Permanent registration in the region of credit registration;
• Stable income for the previous 6 months;
• Solvency (calculated on the basis of necessary payments, taking into account the size of the monthly contribution to the bank) - should not exceed 30% of the guarantor's income.

Most often in the role of guarantors are relatives and acquaintances. But some banks, for fear of fraud, exclude such a possibility from the terms of the loan. If it is a question of granting guarantees for the obligations of the legal entity, other companies can act as guarantors. But public organizations and state institutions can not claim this role.

Surety agreement

The requirements specified in the Civil Code do not allow the conclusion of an agreement between the debtor and the guarantor. The parties are the creditor and the guarantor. The contract is one-sided, consensual. It creates an additional accessory commitment. The guarantor can only be held liable if the debtor fails to fulfill the terms of the transaction. The accessory obligation is limited by the validity of the principal, even if the document does not have an exact date. His concession can not level the contract of guarantee (Article 384 of the Civil Code of the Russian Federation).

Content of the contract:

• Name of the creditor;
• Name of the guarantor;
• The amount of the obligation;
• Name of the borrower.

Restrictions

Although the Civil Code does not specify the number of persons who can act as a guarantor, the court-arbitration practice has shown that in some cases the contract can be recognized as invalid. This is permissible if the guarantors are:

• State enterprises that use funds for purposes defined by the charter;
• Departments, ministries, municipal authorities.

The contract of guarantee is executed in a simple written form and must be signed by the borrower, creditor and guarantor.

Responsibility of the parties

The task of the guarantor, at first glance, is simple. He must be responsible for repaying the loan if the payer fails to fulfill his obligations. The right of the bank to demand money from a guarantor is specified in art. 363 of the Civil Code of the Russian Federation.

Joint-liability means that the guarantor and the debtor are equally liable for their obligations. That is, a claim can not be satisfied only by one of the parties. Subsidiary responsibility means that claims to the guarantor are made only in the absence of funds from the debtor. This option is more suitable for guarantors. The lender will first have to spend time trying to prove the borrower's insolvency. And if he starts to hide, then it will be almost impossible. So, the bank can not make any claims to the guarantor. Therefore, this scheme is used extremely rarely.

The document clearly should indicate which losses are compensated by the guarantor:

• main debt;
• Interest for the use of funds;
• Forfeits;
• legal costs.

If the guarantee, a sample of the contract which can be taken from a bank employee at the time of making a decision, is concluded with a credit institution, it is most likely that it will state that losses and uncovered penalties should be reimbursed at the expense of the guarantor. In other cases, the scheme of partial compensation for damage is most often used, that is, payment of only the principal debt.

Another point to pay attention to: for violation of the terms of payment of debt, a "negative" credit history is formed at the client. But in the case of bail, the guarantor enters the black list along with the borrower. A contract is entered into the contract, according to which its data are transferred to the credit history bureau. Therefore, if the borrower violates the terms of the transaction, he will spoil the reputation not only for himself, but also for his guarantor. But that's not all. The guarantor will not be able to issue even a small loan in the bank, while he acts as guarantor.

Renouncement

A surety is a one-way commitment. According to Art. 364 of the Civil Code of the Russian Federation, the guarantor may object to the claims, but he has no right to refuse them independently. Claims to the creditor may be made if the term of using the funds is violated, the borrower's money is not received by the borrower. Recognize the transaction as invalid only in the courts.

After the guarantor has responded to all obligations of the debtor, he receives documents on the basis of which he can present a regressive claim. If the guarantor has fulfilled the obligation satisfied by the borrower, he can recover funds from the bank (Article 366 of the Civil Code of the Russian Federation).

Exemption from liability

The guarantee of an individual is stopped if:

• The obligation is fulfilled;
• The contract was amended to increase the liability of the guarantor, which was not agreed with him;
• The debt was transferred to a third person, for which the guarantor does not want to answer;
• The creditor refused to make demands;
• The debtor has died;
• The term of the guarantee has expired. In the contract period of its validity may not be specified. Then the obligations cease 12 months after the onset of their execution, if during this period the bank did not sue the guarantor. There may be another situation. There is no opportunity to set a deadline for the fulfillment of the main obligation, and the dates are not specified in the contract. Then the surety will be stopped after 2 years from the date of signing the contract, if no action is brought in during this time;
• The loan agreement was declared invalid. According to Art. 329 of the Civil Code of the Russian Federation, the guarantee has the nature of an accessory obligation, that is, it can not exist separately from the main one. If the court recognizes that the borrower owes nothing to the bank, then it is impossible to make any claims to the guarantor.

We should also discuss the issue of inheritance separately. According to the interpretation of the Supreme Court of the Russian Federation, the heir must answer for the obligations of the deceased guarantor to the credit organization only within the value of the received property. The rest of the debt is not enforceable. If the heir generally refuses to enter into his rights, then the debts of the deceased do not apply to him.

Kinds

Personal surety on the loan is bank and property. Their main difference lies in the fact that in the second case the contract specifies the specific subject of the pledge. In turn, the bank can provide borrowed funds and without prior analysis of the client's solvency. But this option is most often used when issuing an express loan to a legal entity. But if a mortgage is drawn up, or we are talking about buying a car, the lender will carefully check the financial condition of the guarantors. The latter can be several. Most often, relatives or close friends of the borrower act in this capacity.

A guarantee, security or guarantee may be required for a small loan amount if:

• The client does not have enough income to cover the amount of debt;
• The borrower had problems with the repayment of funds in the past;
• The client already has credit obligations.

A surety is a "insurance" of a bank from a bad borrower. Therefore, only a person can qualify for this place, whose income level will be sufficient to cover the principal debt and interest on the loan.

Rights of the guarantor

1. To raise objections to the claims of the bank if it violated the terms of the contract, for example, made changes without agreement with the guarantor.
2. To take the right to demand compensation from the main borrower, if the debt was repaid by the guarantor. This operation is formalized by the contract of assignment. The bank must provide documents that confirm that the debt was repaid by the guarantor.
3. To demand the return of funds from the main debtor, taking into account interest, penalties, court costs, as well as compensation for moral damage (Article 365 of the Civil Code of the Russian Federation).

Conclusion

A surety is a way of securing obligations under which a third party undertakes to repay part or all of the debt to the lender if the borrower can not do it on his own. Most often, the need for this service arises when making a mortgage or a loan for a car. A person who acts as guarantor of a transaction must be very sober about his financial situation. Unilaterally refuse to fulfill the obligations will not work.