YUST  /  Press-center  /  Analitics

Guarantee of Bank lending

Guarantee of Bank lending

article Source – journal ’Bank review October 2013.

Alexey Sidorov, lawyer of the Law firm «YUST»

Contracts of guarantee - a common way of securing the performance of obligations of debtors to creditors. However, banks do not always perceive them as a reliable tool for protection of their rights and prefer to issue loans secured by property of the borrower. This is because the contracts of guarantee after the occurrence of the obligation to respond for outstanding, the borrower's obligations successfully challenged guarantors for validity.

among the reasons for The appeal to the court - legal uncertainty regarding the validity of a contract of guarantee entered into in respect of overdue, the borrower's obligations, save the force of the Treaty of guarantee after termination of the credit agreement and to making inconsistent guarantor changes in the conditions of the credit agreement. Last summer, the Plenum of the Supreme Arbitration Court of the Russian Federation (hereinafter - SAC) adopted a Resolution from 12.07.2012 № 42 «On some issues of the settlement of disputes related bail» (hereinafter - Decree no. 42), thus making some clarity.

Based on the legal position of the Plenum of the RF guarantee agreement concluded in respect of overdue credit obligation by the borrower, is valid. 's opinion regarding overdue, the borrower's obligations (for example, the repayment of the loan and interest thereon) allows, on the one hand, to protect the interests of the Bank, and with another - to give the borrower a second chance to fulfill its obligations under the loan agreement.

furthermore, the conclusion of such contract is not grounds for recognition of invalidation of the transaction (item 3 of the Decree no. 42). It should be noted that, according to many experts, the rationale of this postulate is not the most convincing. In particular, the SAC refers only to the absence of the Civil code of the Russian Federation of any ban on the conclusion of such contracts. Although previously the panel of judges took the opposite position, motivating it by the fact that this agreement is inherently adoption of the guarantor of the debt of another person, as this directly contradicts the legal nature of the guarantee <…>.

Back to list