Bank guarantee. Bank guarantee in the auto business. The principal and the beneficiary are parties to the bank guarantee. According to the type of conditions, bank guarantees are divided. Can a bank refuse

In simple terms, a bank guarantee is a type of guarantee agreement, what is it and what is it used for? In this case, the obligations of the guarantor are assigned to the bank or other credit/insurance institution. This means that this organization will be responsible for fulfilling the obligations specified in the agreement.

In this article, we will explain in detail what a bank guarantee is and explain this concept in simpler words!

Purpose

To get a good deal, the company must prove its ability to meet its obligations. Such evidence may be the retention of the debtor's property, a penalty, a deposit, a bank guarantee agreement.

Making a bank guarantee agreement is quite simple. The client firm submits an application to the financial institution, and it undertakes to pay a certain amount to a third party(partner of the firm in the transaction).

An application can be submitted by both a legal entity and an individual who is an individual entrepreneur.

This method has an advantage over the others., previously listed ways of guarantee. An enterprise that has concluded a deal with a bank confirms the fact of its solvency, getting the opportunity to work without prepayment.

In addition, the partner of this firm can be absolutely calm about cooperation with it: in the event of an unforeseen situation, he will not have to recover money from the debtor through the courts and other instances. To receive the amount due under a bank guarantee, he will turn to a financial institution, present a document, and return his funds.

Another advantage is the ability to purchase services / goods with a deferred payment. In other words, having such a document, an individual entrepreneur or a legal entity can take the goods for sale.

Most often, banks go towards the company if the transaction involves the turnover of a large amount. Previously, such a bank guarantee scheme was used to secure foreign economic transactions. Today, convinced of the reliability and simplicity of this method, it is used by many companies regardless of its size and organizational form.

Peculiarities

Feature of this method- the guarantor, which is exclusively a bank or other credit/insurance institution.

Since this "paper" is a kind of credit product, it cannot be obtained without a deposit.

When concluding an agreement for the provision of a bank guarantee, they may be securities, deposits, equipment, buildings, goods in circulation, apartments, vehicles, other assets, guarantees from other organizations / citizens.

After providing security institution evaluates its value. At the same time, the real value is reduced to the price at which the property can be sold in case of an unforeseen situation. If the firm fails to fulfill its obligations, the institution will sell material values ​​or turn to the guarantor.

After collateral evaluation the bank and the organization enter into an agreement. At the same time, the “paper” indicates the person to whom (principal) and in whose favor (beneficiary) it is issued, commission, amount, type of collateral, validity period.

The company that received this document gives it to its partner - counterparty. If the enterprise fulfills the assigned duties, the institution releases its property, removing any restrictions from it.

Kinds

Guarantees differ depending on to whom they are issued, for what purposes they are intended.

Types of bank guarantee:

• tender;
• payment;
• performance of the contract;
• repayment of a loan or refund of a payment;
• to ensure the fulfillment of obligations;
• on customs payments.

The most popular is the payment method. which is issued in favor of the seller at the request of the buyer. As for the bank guarantee agreement as a way to ensure the fulfillment of obligations, it is issued in favor of the buyer at the request of the seller.

Performance guarantees companies require from their partners, to make sure there is no supply disruption and all work will be completed on time. Otherwise, the financial institution will have to pay the amount specified in the agreement.

A bank guarantee is an effective tool that ensures productive, reliable cooperation between legal entities/individuals. For a party in need of a guarantee, it is a better solution than lending.

A bank guarantee - what it is, its essence and why it is needed - the specialist will tell everything in this video:

This is due to the fact that the use of this method is much cheaper than a loan, gives the partner confidence in cooperation and contributes to the formation of trusting relationships between business partners.

In contact with

A solid business involves borrowed funds and third-party guarantees. However, there is something more significant and reliable, which we will discuss below. This article discusses bank guarantees, what they are, what are their advantages. The material will be useful both for experienced players in the loan market and for beginners.

What is a bank guarantee in simple words

This is the obligation of the bank to pay the creditor a certain amount of money in case of violation of the agreements under the contract by the supplier (contractor, performer). The payment is made on the conditions fixed in the guarantee document, which is drawn up in writing on a letterhead and certified with a stamp.

In the strict sense of the word, a BG is called an independent guarantee - the corresponding innovations were introduced in June 2015 in the norms of the Civil Code of the Russian Federation, however, for a better understanding, we will call it a more familiar term - a bank guarantee (BG).

When is a bank guarantee useful: its varieties

Warranties are a fairly common form of transaction security used in many market segments. Depending on the ultimate goal of the recipient, in practice, several types of bank guarantees can be distinguished:

• Tender. Mandatory security used in the public procurement procedure and guaranteeing compliance with the conditions of the tender by the participant, as well as further fulfillment of his obligations.
• Payment. Relevant in the field of commodity credit, as well as for receiving installment payment from the supplier. Guarantees payment for products in case of delay or debt on the part of the debtor.
• Customs. It is used in the process of customs clearance of goods and their clearance when crossing the border. Such a guarantee shall be paid to the customs (tax) authorities in cases established by law.
• Execution. Ensures the proper execution of the transaction by the contractor. Payments from the bank are due to the customer and are carried out in case of default by the counterparty under the contract.
• Refund. The bank reimburses the beneficiary for the amount of the unreturned advance payment.
• Credit return. The recipient of the guarantee payment is the lender who issued the loan.

A bank guarantee is a serious help for business in various areas of economic activity. In fact, a well-formed guarantee acts as an insurance policy for the lender and a credential certifying good faith and solvency for the borrower.

Parties to warranties

The guarantee agreement is concluded between two participants - the borrower (principal) and the bank (guarantor) in favor of the third participant - the creditor (beneficiary). The borrower is usually the executor (contractor) or buyer (acquirer) of the transaction.

A banking or other credit institution, as well as commercial organizations can act as a guarantor. If the guarantee is issued by other entities, then it is equated to a surety agreement and entails other legal consequences for the parties to the agreement.

If a guarantee is required to participate in the public procurement procedure, then only an authorized bank that meets all the requirements of Part 3 of Art. 74.1 of the Tax Code of the Russian Federation and included in a special list approved by the Ministry of Finance. Warranty obligations under tenders are registered in the Unified Procurement Information System. Banks that have the right to issue guarantees under FZ-223 are not subject to mandatory registration in the Register, but their list can be viewed on the Central Bank website in the directory of credit organizations.

When receiving a bank guarantee through an electronic exchange site, you do not have to think about these subtleties - our services have “thought” for you, taking into account all the nuances of the procedure.

What should be in the text of the bank guarantee?

An exhaustive answer to this question is provided by Part 4 of Article 368 of the Civil Code of the Russian Federation, which lists the mandatory conditions for a bank guarantee, namely:

• date of issue of the document;
• names of participants;
• an obligation secured by a guarantee document;
• the amount of payments or the algorithm for its calculation;
• validity period of the security;
• the conditions of the guarantee payment and the necessary documentary evidence for this.

The document may also contain additional items agreed by the parties:

• conditions for a possible change in the guarantee amount;
• circumstances for the withdrawal of the BG;
• the right of the beneficiary to transfer the rights of claim to third parties;
• the moment of entry into force of the guarantee, if it does not coincide with the moment of its transfer (sending) by the guarantor and other conditions essential for counterparties.

Specially not stipulated issues are regulated by current legislative norms.

What are the advantages of a bank guarantee?

If you were interested in this issue, then you came across the statement that getting a BG is much more profitable than other types of security. Let's see if this is the case.

Long-term practice in this area allows us to assert that bank guarantees are much more profitable and easier to use than other interim measures, including surety and pledge.

Benefits of BG:

1. It is cheaper - of course, if you approach it thoughtfully, using the services of our electronic exchange managers.

2. Does not require the withdrawal of money from circulation, as in the case of a pledge. Borrowed funds will cost even more - the interest on loans is usually higher than the commission on a bank guarantee.

3. It is not related to the history of the main transaction - in fact, it is unchanged throughout the entire validity period, unless the parties agree on other conditions, while the guarantee directly depends on the fate of the secured obligation.

4. In situations defined by law, it is the only possible means of security. Thus, in the field of tender purchases, a bank guarantee is defined by a special law FZ-44 as a mandatory component of admission to competitive bidding.

5. A reliable interim measure that provides the recipient with great market opportunities, including the right to trade credit and deferred payment.

For a lender, such collateral is a proven, legitimate way to reduce their own risks and at the same time check the financial position of the prospective counterparty. Thus, an independent guarantee acts as a kind of certificate confirming the solvency and economic stability of the borrowing company.

What affects the price of a guarantee agreement?

How much BG will cost you depends on several significant factors:

1. The amount of the main contract and the subject of the secured obligation.

2. The amount of the guarantee payment claimed by the borrower, or the legally established amount of payments.

3. The duration of the BG, during which the beneficiary can receive the amount due.

4. The presence (or absence) of liquid collateral, with the help of which the bank reduces its own risks.

The cost of the guarantee is the base value for calculating the commission paid to the bank on the day the documentation is processed. In practice, the guarantor's remuneration ranges from 2% to 10% or is a fixed amount with a lower minimum threshold calculated in rubles.

Need a guarantee. Where to begin?

1. Decide on the bank. If you managed to get collateral from a credit institution last time, it is not a fact that you will be given it again. In addition, the criteria for the "reliability" of borrowers for each organization are different - it is important to find "your" lender.

2. Submit an application with the necessary documents to the selected institution. For both experienced and beginners, an electronic service is perfect that allows you to submit an application simultaneously to 30 partner banks of the exchange.

3. After checking the applicant's financial situation, the bank will either reject or approve the application.

4. In case of a positive decision, you proceed to the stage of directly issuing a bank guarantee.

5. From the moment the document is received from the guarantor, it comes into force and is valid for the period specified in it.

It's time to take advantage of the benefits!

We tried to describe in detail what a bank guarantee is in simple language for those who intend to independently understand this issue. If you do not have the time and desire to deal with the preparation of warranty documents, you can use the services of the site and entrust this work to experienced managers.

Article 368. The concept of a bank guarantee

By virtue of a bank guarantee, a bank, other credit institution or an insurance organization (guarantor) give, 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.

Commentary on Article 368

1. The institution of a bank guarantee in the form in which it was enshrined in the Civil Code of the Russian Federation is fundamentally new for Russian legislation. Nothing like this existed before.

A guarantee, including a bank guarantee, was qualified in civil law as a type of surety agreement. The current bank guarantee has little in common with a surety. Moreover, it stands apart from other ways of ensuring the fulfillment of obligations. This is due to the specific features of the guarantee, the special subject composition of relations arising from the issuance and execution of the guarantee, and the rather peculiar content of the relevant legal relations.

The bank guarantee is not widely used in Russia. In other countries, as well as in relations between Russian legal entities and foreign organizations, the use of a bank guarantee to secure obligations is quite common. There is even a system of customary legal norms on contractual guarantees, the content of which largely predetermined the content of the norms of the Civil Code of the Russian Federation on a bank guarantee.

2. A bank guarantee is characterized by the following features:

Independence, independence from the obligation secured by it, even if the guarantee contains a reference to this obligation (Article 370 of the Civil Code). In each case, a bank guarantee owes its birth to the main obligation, because it is impossible to provide an obligation that does not exist. The independence of the obligation of the guarantor is obviously manifested in the fact that, considering the claim of the beneficiary, the guarantor cannot raise objections based on the relationship of the beneficiary and the principal;

Irrevocability: the guarantor has the right to revoke the guarantee only if it provides for such an opportunity (Article 371 of the Civil Code);

Non-transferability of rights: the beneficiary may assign to a third party the right to claim against the guarantor belonging to him under a bank guarantee only if such a possibility is provided for in the guarantee itself (Article 372 of the Civil Code);

Compensation: for the issuance of a guarantee, the principal pays a fee to the guarantor (Article 370 of the Civil Code);

A high degree of formalization of relations, which manifests itself, for example, in the fact that even if the beneficiary has reason to demand from the guarantor the fulfillment of the obligation provided for by the guarantee, but the documents attached to the relevant demand of the beneficiary do not comply with the terms of the guarantee, the guarantor refuses to satisfy such a requirement (clause 1 of article 376 of the Civil Code).

3. The subject composition of a bank guarantee is quite specific.

Three subjects are involved in the relations arising from the bank guarantee:

1) guarantee- it can only be a bank, other credit institution or insurance organization. If a “bank guarantee” is issued to secure any obligation by some other entity (commercial or non-commercial legal entity, state or local government, etc.), then such a guarantee is invalid (void), since the legal capacity of these entities is not includes the possibility of issuing a bank guarantee;

2) principal- a person who in any obligation (credit, from a contract of sale, lease, contract, etc.) acts as a debtor. A bank guarantee is given at the request of the principal. Consequently, a bank guarantee issued without such a request is invalid (Article 168 of the Civil Code);

3) beneficiary- the creditor of the principal under the obligation secured by the bank guarantee.

Principals and beneficiaries can be any subjects of civil law.

Because Art. 329 of the Civil Code of the Russian Federation contains an open list of ways to ensure the fulfillment of obligations, then other entities, in addition to those named in the commented article, can issue guarantees to secure obligations. However, on the one hand, these guarantees will be outside the legal regime of a bank guarantee. The rules of civil law on a bank guarantee will not apply to such methods of securing obligations.

On the other hand, it would be wrong to assume that guarantees issued by entities other than those indicated in the commented article are surety guarantees. It all depends on what content the participants in the relevant relations will fill the concept of "guarantee".

4. The legal and factual basis for the development of relations regarding a bank guarantee can be represented as follows.

Firstly, the initiative in the emergence of the relevant relations is shown by the debtor under any obligation (the guarantee is given at his request), which, as a result of the issuance of a bank guarantee, becomes the principal. The position of the creditor of the specified debtor has no legal significance. However, there is no doubt that the debtor's initiative itself, as well as the terms of the bank guarantee requested by the debtor, are dictated by the requirements of the creditor to the debtor (for example, when concluding a sales contract that provides for payment of goods in installments, the seller requires that the buyer's obligation to pay for the goods be secured by a bank guarantee of a certain entity).

Secondly, a bank, other credit institution or insurance organization expresses its will to be a guarantor by issuing an appropriate written obligation.

5. Registration of a bank guarantee is carried out in several stages.

The debtor under any obligation (principal) applies to a bank, other credit institution or insurance organization (guarantor) with a request to give an obligation, under certain conditions, to pay the creditor of this debtor (beneficiary) a sum of money upon submission by the beneficiary of a written demand for its payment. This request is made in writing. In addition to the request for a bank guarantee, it may set out the possible conditions for a future guarantee, the amount of remuneration that the future principal is ready to pay to a potential guarantor for issuing a bank guarantee, etc. The relationship between the principal and the guarantor regarding the issuance of a bank guarantee by the latter is governed by their agreement, which establishes the amount of remuneration paid by the principal to the guarantor, determines the rights and obligations of the guarantor and the principal arising in connection with the payment by the guarantor of monetary amounts to the beneficiary in fulfillment of the requirements of the latter, etc. .

Finally, a bank, other credit institution or insurance organization gives a written obligation to pay the principal's creditor (beneficiary) a sum of money upon submission by the beneficiary of a written demand for its payment. This written obligation (bank guarantee) determines the amount for which the guarantee is issued, formulates the conditions under which the guarantor undertakes to pay the specified amount or part of it to the beneficiary, provides a list of documents that must be attached by the beneficiary to the demand for payment by the guarantor of the amount of money, indicates period for which the guarantee is issued.

There are known cases of issuing bank guarantees, the validity period of which expired on the date of fulfillment of the obligation secured by the guarantee, established by agreement between the debtor and the creditor. Until this day, it is still impossible to demand from the guarantor the fulfillment of his obligation (the beneficiary will not be able to indicate what the violation of the "main" obligation by the principal was expressed in). After the expiration of the term, it is no longer possible to submit a corresponding claim to the guarantor, since the guarantor's obligation has ceased. Similarly, the case can be characterized when the bank guarantee is terminated earlier than the deadline for the fulfillment of the main obligation. The courts usually proceed from the fact that under such circumstances the bank guarantee is invalid, because when it was issued, there was initially no security function in relation to the "main" obligation.

In addition, a bank guarantee may provide for the right of the guarantor to withdraw the guarantee, conditions for withdrawal may be stipulated, the right of the beneficiary to transfer the right of claim belonging to him by virtue of the bank guarantee to another person may be fixed, the term for the entry into force of the bank guarantee may be established, and finally, the liability of the guarantor may be limited. to the beneficiary for non-fulfillment or improper fulfillment by the guarantor of the obligation under the guarantee.

It is possible to formalize relations regarding a bank guarantee by drawing up one document signed by the guarantor and the beneficiary, and sometimes even the principal, and this document may set out not only the terms of the guarantee, but also the rules on the relationship between the guarantor and the principal, although from the point of view of legal technique such a design of relations is not correct enough, but it is quite acceptable.

The guarantor's obligation must be in writing.

Typically, a bank guarantee is given by issuing (sending) a so-called letter of guarantee or a document entitled "Bank guarantee" or, more simply, "Guarantee".

The first of the names of the document containing the terms of the bank guarantee does not seem to be very successful. Nevertheless, one can predict some distribution of such documents - a tradition. (Sometimes a letter of guarantee is a document that does not have a heading, executed on the letterhead of a guarantor bank, containing an indication of the beneficiary and the terms of the guarantee.) It is much worse if "bank guarantee agreements" are drawn up, which are sometimes mentioned in the literature. The existence of such "contracts" gives rise to the illusion that there is a contractual relationship between the guarantor and the beneficiary. The embodiment of a bank guarantee in the form characteristic of bilateral or multilateral transactions contradicts the essence of the relationship between the beneficiary and the guarantor.

To issue a bank guarantee, the will of one party, the guarantor, is necessary and sufficient. Therefore, this is a unilateral transaction (clause 2, article 154 of the Civil Code). As a result, a unilateral obligation arises, according to which the guarantor undertakes to pay the beneficiary-creditor under the obligation secured by the bank guarantee a certain amount of money.

6. As follows from the above, a bank guarantee very effectively ensures the interests of the creditor (beneficiary). It can provide various obligations, including credit. Another thing is that, being beneficial to the beneficiary bank, the bank guarantee is rather "dangerous" to the guarantor bank. Therefore, the guarantor bank usually seeks to ensure that the recourse obligation of the principal, in turn, is secured by a pledge, surety, or even a bank guarantee. For example, the lender (future beneficiary) will only be satisfied with the guarantee of bank "A". This bank agrees, but on the condition that the recourse obligation will be secured by a guarantee of bank "B", or a pledge of certain property, or a surety of a certain subject, etc.

The concept of "bank guarantee" is the most effective tool to ensure the security of the transaction.

In fact, this is a loan product, which, in terms of its equivalent, is much cheaper than a cash loan. By providing these services, the bank takes a commission, i.e. its interest.

What it is

In simple terms, a bank guarantee is a written obligation of the bank that if it fails to fulfill certain conditions of the contract, they are obliged to pay the specified amount of money to the customer.

This is necessary to achieve maximum efficiency in fulfilling the obligations specified in the contract. At the conclusion of many transactions, this factor, which contributes to the reduction of risks, is the main condition for further joint cooperation.

In such processes, as a rule, three subjects are involved, namely:

1. The first entity is called the guarantor and is an institution that undertakes financing, charging a certain fee and specific obligations for this.
2. The second subject is the principal, namely the initiator himself for the provision of this obligation, he is also the executor for the main contract.
3. The third person, who is also the customer behind the main contract, is called the beneficiary, this is the person whose interests are being protected.

The classification of bank guarantees depends on the type of transaction.

There are such bank guarantees as:

• tender guarantee, it is competitive. In the event that the winner of the tender refuses further cooperation for any reason, this guarantee can reduce the risks of the customer;
• performance guarantee. This type of guarantee is engaged in the maximum reduction of risks in the delivery of goods, guaranteeing its timeliness and completeness. The same happens when performing any works or services;
• payment guarantee. Ensures control over the timeliness of payments for the services (works) provided or the supply of goods;
• advance guarantee. This is control over the fulfillment of obligations to return the advance payment, if for any reason the terms of the transaction were violated, both in terms of timing and volume;
• tax, customs guarantee. Monitors the fulfillment of obligations to these state bodies.

In addition to the above, there are other types of guarantees, which depend on what goals are set for the transaction. In addition, bank guarantees are divided into revocable and irrevocable.

Why are bank guarantees needed?

In order to explain in a simpler way what bank guarantees are for, it is better to use an example.

Consider the following workflow:

1. Firm P (principal) decided to conclude a contract with firm B (beneficiary), which is also the customer, in other words, the buyer of this product.
2. Next, company B tries to protect itself and obtain certain guarantees that the goods will be delivered on time and in full. To do this, firm P, which is also the principal and the executor, attracts a guarantor, namely bank B, and receives from him the necessary guarantee in writing.
3. Further, bank C undertakes to assume guarantees for the fulfillment of obligations, that is, to pay company B, if company P does not fulfill its obligations, the agreed percentage of the contract amount. Naturally, the bank also assumes such obligations for a certain amount.
4. If such a case occurs and firm P violates its obligations, then it may demand from the bank in writing the fulfillment of its guarantee obligations to pay compensation for damage.
5. The bank, in turn, pays the required amount to the beneficiary, i.e. the customer, and from the company P (principal) will require reimbursement of the funds paid by them.

There are other ways to reduce the risks in the transaction - this is to receive a cash collateral, but for this, the executing company must extract a certain amount of money from the cash flow. It is worth noting that this is a rather unprofitable enterprise, since in this case it is often necessary to resort to raising borrowed funds, which will be several times more expensive.

Registration procedure

The registration procedure consists of the following steps:

• the very desire to conclude such a deal;
• search by the executor (principal) of a direct guarantor in the form of a bank;
• filing an application for a guarantee;
• submission to the guarantor bank of a package of all necessary documents;
• carrying out actions to check the client for his solvency;
• direct conclusion of the agreement itself between the principal and the guarantor;
• the contract itself.

The search for a guarantor bank can be carried out both independently and through a broker. It will even be easier to contact a bank that works directly without intermediaries, namely Sberbank.

What documents do you need to have

Each bank that has decided to take on a guarantee obligation, first of all, risks its own funds. The latter are spent if the case has come. Reimbursement under the contract must come from the client, who undertakes to pay them.

Risk is a noble cause, of course, but not always justified. Securing obligations plays an important role in concluding an important contract, and a bank guarantee can help with this. The bottom line is that the bank acts as a guarantor that the terms of the transaction will be met. This is important for public procurement, participation in tenders, conducting operations at the international level, accepting advance payments.

The conclusion of any transaction is a potential risk. Failure to fulfill obligations by one party may cause serious material damage to the other party.

The greatest risk arises in international transactions and transactions with deferred payment. A guarantor of fulfillment of obligations, which is provided by a third party, can mitigate the situation. Such a guarantee is irrevocable, except in cases where the second party, in whose favor the document is issued, renounces the contract.

A bank guarantee is a promise by a bank to fulfill obligations for a third party. Despite the fact that the guarantee is called a bank guarantee, it can also be issued by any commercial organization. However, not all contracts can be entered into with such guarantees. For example, in transactions with the state, it is required that only a bank act as a guarantor.

Such security is necessary for companies that work with the state and participate in competitions for obtaining an order, and for this it is often necessary to provide a guarantor of its implementation. It is required for transactions:

• on public procurement;
• with the competition;
• with deferred payment;
• customs.

Insurance is used to cover the risks of developers and travel companies.

The rules for granting a guarantor are regulated by the Civil Code (Articles 368-379). You can issue a bank guarantee both independently and with the help of a credit broker.

Parties to the agreement

There are 4 parties involved:

• guarantor - one party that guarantees;
• beneficiary - the second party to whom the guarantee is issued;
• principal - the third party for which the guarantee is issued;
• the principal's bank (it applies for a guarantee).

Bank guarantees under 44 FZ are issued to legal entities and are used when concluding international transactions or conducting operations on the domestic market. They are needed to secure the proper execution of the terms of the contract.

When participating in a bank transaction, the principal pays a fee to the credit institution. Its size depends on many conditions of the transaction, in particular, its volume and the reliability of the company for which the guarantor is issued, and, as a rule, the fee ranges from 1-3% of the contract amount. To secure obligations, the bank may require collateral, for example, real estate, goods, securities. Alternatively, the principal is offered to issue a security deposit.

Which bank can provide the service?

Not every credit institution is authorized to issue bank guarantees to secure transactions under government contracts. The list of banks is established by the Ministry of Finance according to the information provided by the Central Bank. The main requirements for banks:

• 5 years of banking license;
• 1 billion rubles the minimum amount of capital;
• there are no signs of bankruptcy of the credit institution.

Examples of banks that can be charged:

• Rosselkhozbank (registration in 2000, capital 287,541,037 thousand rubles);
• Sberbank of Russia (registration 1991, capital 2,535,918,643 thousand rubles);
• VTB (registered in 1990, capital 1,105,036,829 thousand rubles);
• Binbank (registration 1993, capital 54,743,871 thousand rubles).

Previously, insurance companies were also involved in issuing bank guarantees for public procurement. However, they are currently unable to carry out such activities.

Types of bank guarantees

The guarantor is required to ensure:

• fulfillment of obligations by the tender participant;
• performance of the contract;
• return of the advance payment.

First of all, the guarantor is needed to participate in the auction, auction or competition. They provide the application of the participant, and if the participant won these auctions, then the contract too. The validity period may vary depending on whether the company has won the tender. If not, then before the announcement of the winner, if yes, then for the duration of the contract.

Enforcement of the terms of the transaction is also a common situation when you need to use a bank guarantee. If the bidder is the winner, he must confirm that he will fully comply with all the terms of the transaction. The guarantor must be before signing the contract. In case of violation of the terms of the contract, the bank will pay forfeits and fines.

A bank guarantee can become a guarantor of payment security. It is provided if the customer makes an advance payment to the contractor. Its size can be different and is established by the contract. So, so that the performer does not disappear along with the money, the customer may require the provision of this advance. Also, such a guarantee protects against misappropriation of funds.

A customs guarantee is necessary to ensure the payment of customs payments to the budget. It is issued to the customs authority.

Can a bank refuse?

The bank has the right to refuse payment if the beneficiary has not provided documents confirming the right to receive money. Also, the bank can suspend the payment if it has any doubts. However, the delay should not exceed 7 days. The reason for refusal may also be an unlawful request. There are no other reasons, and if a circumstance arises in which the guaranteed amount must be paid, this has to be done.

What does the document look like

It is always made in writing. The document should reflect the following:

• all participants in the transaction (guarantor, principal, beneficiary);
• date of issue and validity period;
• the obligation that is secured;
• the amount and procedure for payment in the event of certain situations.

The conditions cannot be changed.

Who can benefit?

Banking services can be used by both individuals and legal entities. However, the latter is more necessary. Not every company can expect to receive it. The reputation of the principal is important. It is easier for a large company with a good turnover to get it. Also, the availability of a current account in the required bank can simplify the procedure. A good credit history is another pro.

The main condition of a credit institution is the solvency of the company for which the bank is responsible. You can check this by analyzing the financial and economic activities of the enterprise. Several years of documentation may be required. Another important condition is the provision of a transaction, in simple words, a pledge. The bank can also provide such a service without collateral, but the fee for it will be higher.

When the contract ends

The contract is terminated if:

• expired;
• the beneficiary received the money;
• the beneficiary waived the rights.

The principal and the guarantor bank cannot terminate it unilaterally.

counter-guarantee

In addition to the guarantee, there is also a counter-guarantee. It is issued by the principal's bank in favor of the guarantor to secure the principal's obligations to the guarantor. Also a kind of safety net in case of non-fulfillment of the terms of the contract.

Thus, what is a bank guarantee and why is it needed, we can say in our own words that this is a kind of insurance in case one party violates its obligations under the contract. The service is necessary for transactions with the state and participation in tenders, competitions, auctions, for concluding contracts at the international level. Both banks and commercial organizations can provide it, depending on the purpose for which such a guarantee is required.

A bank guarantee is a type of security for obligations confirmed by a bank (“guarantor”) in favor of a client (“principal”) to fulfill obligations to a creditor (“beneficiary”).

There are various types of guarantees: tender, payment, customs, tax, contract performance, credit line. Legislative regulation of operations is carried out on the basis of Art. 368 part 1 of the Civil Code of the Russian Federation dated November 30, 1994 (51-FZ). A bank guarantee helps to develop business, opens up new prospects for legal entities.

Return of bank guarantee

The return of the bank guarantee is made:

• when the beneficiary waives his rights. Such a situation may arise upon termination of the contract, in the event that customs obligations have not arisen;
• upon liquidation of the guarantor as a legal entity, upon revocation of the license by the Central Bank of the Russian Federation;
• at the end of the contract;
• upon payment of the full amount to the beneficiary;
• expiration of the warranty period;
• upon payment of compensation.

Execution of a bank guarantee

The execution of a bank guarantee is understood as the fulfillment of the guarantor's obligations under the contract upon the occurrence of the cases described in it. The execution of the bank guarantee is entrusted to the bank, which subsequently independently returns the funds from the unscrupulous principal.

The process of execution of a bank guarantee consists of several stages:

• drawing up a claim, submitting it to a financial institution and notifying the principal of a claim received by the guarantor;
• consideration of the application and verification of documents;
• making a decision and notifying all interested parties about it.

Securing a bank guarantee

The provision of a bank guarantee is made on the basis of Article 368 of the Civil Code of the Russian Federation. It is made after the application for a guarantee is submitted and the bank makes a positive decision on the application. The subject of the security is specified in the contract. It can be: a pledge, a deposit, a bill, guarantees of another financial institution, which the principal transfers to the bank. The amount of the security must exceed the amount of the guarantee. The credit authority may request confirmation of the value of the collateral, for example, an expert opinion. Typically, interest rates for a guarantee without collateral are higher than for the same service with collateral or a deposit.

Register of bank guarantees

Information on all issued guarantees is entered into the register of bank guarantees. This requirement is fulfilled within 24 hours from the date of conclusion of the contract. Only then will the obligation enter into force. The goals of registration are the possibility of verifying the authenticity of documents, reducing budget losses from false guarantees.

The following information is entered in the register of banking operations:

• name of the bank, its address TIN;
• the amount of money payable by the guarantor in case of default by the principal;
• name, TIN and address of the client of the financial institution as the principal;
• a copy of the surety agreement;
• duration of the obligation.

Bank guarantee terms

The terms of a bank guarantee are determined by its type and are described by an agreement between the principal and the guarantor. Depending on the procedure for payment of funds to the beneficiary, a distinction is made between a guarantee on demand (unconditional) and a conditional guarantee, which requires documentary evidence of the principal's failure to fulfill his obligations. For example, failure to fulfill obligations can be considered as improper performance of a contract, failure to return an advance payment or non-payment of customs duties, failure to fulfill obligations by a tenderer.

Limit on issuance of bank guarantees

Any company can obtain a limit on the issuance of bank guarantees (BG), subject to a number of rules. Registration of an application is beneficial for organizations that often take part in tenders. Obtaining a limit allows you to receive a bank guarantee as soon as possible for several years.

Companies with the most stable economic indicators have the greatest chances to receive the limit. A plus for the organization will be experience in fulfilling obligations. Banks carefully check the level of solvency of the borrower.

Main types of bank guarantees

Guarantee - a way to ensure the fulfillment of obligations on debts. By issuing a guarantee, the bank assumes the corresponding risks. Allocate the main types of bank guarantees: payment, execution, return of advance payment, bill of lading, conditional, guarantees on first demand, customs.

Types of BG differ in terms of execution. Payment guarantee - an agreement by the bank to make payments in the event of default by the borrower. First demand guarantee - the obligation of the borrower to return the borrowed amount after the first written application of the lender.

How to get a bank guarantee?

You can find out how to get a bank guarantee from a bank or a broker. Clients who seek help from a broker are guaranteed to receive permission to, however, the cost of an agent's services is higher than in a bank. By cooperating with the bank, the borrower receives less risk.

It is necessary to prepare a package of documents. The execution of an application in cooperation with a broker, the client shifts to the agent. Consideration of the application in the bank is delayed for 2-3 weeks, the broker is ready to provide the bookmaker within a few days.

What does a bank guarantee look like?

In recent years, the problem of forgery of bank documents has become more acute, so the client must know in detail what a bank guarantee looks like. The document is printed on a corporate bank letterhead. The corporation issuing the guarantee must be listed by the Ministry of Finance.

The document contains the standard text of the agreement, the details of the borrower and the bank. Most banks print letterheads with watermarks. When contacting an intermediary for a guarantee, you should check all levels of protection of the form.

Who issues bank guarantees?

When choosing a broker for a loan, you should clarify in advance who issues bank guarantees and under what conditions. An intermediary of any level turns to the bank for help, since only institutions registered with the Ministry of Finance are entitled to issue guarantees. The right to issue relevant documents is also reserved for insurance companies.

Today, more than 300 banks in the Russian Federation are authorized to issue BGs, the list is expanding. More often, customers turn to large banks: Sberbank, VTB, Otkritie. Small financial institutions offer the drafting of an agreement on more favorable terms.

Bank commission and factors affecting the cost of a bank guarantee

Bank fees and factors affecting the cost of a bank guarantee vary by financial institution and over time. The size of the state contract, the availability of collateral, the reliability of the borrower - everything is taken into account in the preparation of the price of the guarantee. The bank commission is 1.5-5% of the size of the BG.

The rate in the presence of a pledge in the form of property will be 2.5% of the amount of the guarantee, but not less than 10,000 rubles. Having a deposit, the client can count on 1.5%. In the absence of collateral and the ability to open a deposit, the bank provides a rate of 4%.

Documents for obtaining a bank guarantee

Turning directly to the bank or to the broker, you must independently collect information. An application, a questionnaire, analytical tables are compiled at a bank branch. It is also necessary to prepare constituent documents for obtaining a bank guarantee.

It is obligatory to provide: an accounting report, tender documentation, a copy of the contract, a draft text of the guarantee, bank statements for the last 6 months. The Bank requests copies of the passports of the persons responsible for signing the agreement. Banks have the right to require the provision of additional information.

Advice from Sravni.ru: When concluding a bank guarantee agreement, it is worth consulting with specialists who can check the terms of the guarantee.

In accordance with the requirements of the Federal Law of July 27, 2006 No. 152-FZ “On Personal Data”, I give my consent to the Public Joint Stock Company Bank Financial Corporation Otkritie (General license for banking operations No. 2209, issued by the Bank of Russia on November 24, 2014 location: 115114, Moscow, Letnikovskaya st., 2, building 4) and QIWI Bank (joint stock company) (General license of the Bank of Russia No. 2241, issued by the Bank of Russia dated location: 117648, Moscow, microdistrict Chertanovo Severnoe, 1A, building 1) (hereinafter referred to as Banks) for processing, collecting, recording, systematizing, accumulating, storing, clarifying, updating, changing, extracting, using, distributing , transfer, depersonalization, blocking and deletion of my personal data, performed with or without the use of automation tools.

In accordance with the Federal Law of July 7, 2003 No. 126-FZ “On Communications”, I give my consent to the telecom operator with which I have an agreement on the provision of communication services in relation to the mobile number indicated by me, to provide the Banks with information about the subscriber and the information provided to me communication services under an agreement on the provision of communication services concluded with such a communication operator.

I agree to the processing of my personal data, including my last name, first name, patronymic, date and place of birth, details of an identity document, data on citizenship, address, family, social, property status, education, profession, income, place of work, contact information phone and other personal information that can be used for the purposes of promoting the services of the Banks, joint services of the Banks and third parties.

This consent is valid from the moment the application is sent until the Bank receives a written application to revoke this consent to the processing of personal data.

By leaving my data in the application I send and providing additional data and documents by phone, fax or e-mail, I confirm and acknowledge that I have read the stated agreement and give my unconditional consent without reservations or restrictions.

Agree with the rules for booking accounts

The service for reserving a current account number is provided to legal entities and individual entrepreneurs (hereinafter referred to as clients) who have filled out an application on the website or called the bank at 8 800 2000 024.

The bank does not make payments on the reserved account. The money transferred to the client using the details of the reserved account is kept in the bank for 5 business days. If the account is not opened, after 5 working days the money will be returned to their sender. The Bank is not responsible for losses incurred by the client if, on the date of return of money to the sender, the sender's account is closed or his details have changed. If within 5 working days from the date of receipt of money to the reserved account, it is opened, the money will be transferred to the open account within the time limits established by the current legislation of the Russian Federation.

The Bank may refuse to reserve an account number unilaterally without giving a reason. The Bank may refuse to open a reserved account in cases established by the Bank's internal documents in accordance with the current legislation of the Russian Federation.

bank guarantee- a written promise by a bank to pay another bank, company or anyone under a contract, loan or debt security for a third party if that party fails to meet its obligations.

Note that a bank guarantee is a convenient tool for counterparties in a transaction.

And for a credit institution, a bank guarantee is a source of additional income.

Definition of the concept of "bank guarantee" in civil law

The very concept of "bank guarantee" is given in Article 368 of the Civil Code of the Russian Federation.

According to this rule of law, a bank guarantee is a method of securing the fulfillment of obligations, in which a bank, other credit institution or insurance organization (guarantor) issues, at the request of the debtor (principal), a written obligation to pay the creditor (beneficiary) a sum of money upon presentation of a demand for its payment .

Thus, at least three persons are involved in relations related to the issuance of a bank guarantee: the principal and the guarantor.

A guarantor under a bank guarantee is a bank, other credit institution or insurance organization.

The debtor under the main obligation acts as the principal under the bank guarantee, at the request of which the guarantor issues a bank guarantee. Any person can be a principal.

The beneficiary of a bank guarantee is the creditor of the entrepreneur under the main obligation, in favor of which the guarantor issues a bank guarantee.

The role of the beneficiary can be any individual or, as well as state, tax and customs authorities.

Note that according to Part 2 of Article 368 of the Civil Code of the Russian Federation, the issuance of a bank guarantee is a paid service of a guarantor bank.

In this regard, the credit institution charges a bank fee for issuing a bank guarantee. On practice:

The remuneration may be paid as a fixed payment or as a percentage of the amount of the issued guarantee;

The remuneration may be paid in a lump sum or in installments depending on the duration of the guarantee;

The amount of such remuneration is 1 - 10% of the security amount.

Securing a probable obligation

A bank guarantee is a document issued by a bank and addressed to a specific creditor of an organization.

According to the bank guarantee, the bank assumes the obligation to repay the company's possible debt to the creditor at the request of the creditor upon the occurrence of specific conditions.

In this case, the bank undertakes to pay the lender a fixed, predetermined amount.

The peculiarity of such an agreement is that at the time of issuing a bank guarantee, the organization does not yet have an obligation to the creditor, that is, the creditor is potential.

Moreover, in the future, debts for purchased goods, works or services may never appear.

Benefits of a bank guarantee

The main advantages of a bank guarantee are:

low cost of a bank guarantee;

the possibility of effectively resolving the issue of paying obligations without releasing funds from circulation or directly borrowing them from credit institutions.

In addition, a bank guarantee can be considered as an additional incentive to fulfill the obligations assumed under the contract, that is, to supply goods, perform work or provide a service.

Agreement on the issuance of a bank guarantee and the Civil Code

From an analysis of the provisions of Chapter 23 of the Civil Code of the Russian Federation, it follows that there is no obligation to conclude an agreement between the principal and the guarantor.

At the same time, banks that wish to more specifically describe their relationship with the principal reflect the procedure for interaction between the principal and the guarantor in a special agreement - an agreement on the issuance of a bank guarantee.

The subject of such an agreement is the issuance of a bank guarantee.

At the same time, the following conditions may be prescribed in such an agreement on the issuance of a bank guarantee:

the rights and obligations of the bank and the principal;

the timing of the provision of bank guarantees;

the main conditions under which such bank guarantees will be issued;

calculation of the bank's remuneration;

reimbursement of expenses incurred by the bank;

type of contract security;

liability of the parties under the contract;

settlement of disputes;

other provisions.

Accounting for bank guarantees

The value of the bank guarantee is included in the asset, upon the purchase or creation of which the bank guarantee was acquired.

Operations for the acquisition of a bank guarantee are reflected in accounting as follows:

The amount of remuneration to the bank for issuing a guarantee was transferred;

The payment guarantee received from the bank under the contract or supply is included in the value of the asset.

Such postings are made during the formation of the cost of all inventory items.

Value Added Tax (VAT)

Bank guarantee services are related to banking operations.

At the same time, the cost of such a service is not subject to VAT (see clause 8, part 1, article 5 of the Federal Law of December 2, 1990 N 395-1 "On banks and banking activities", clause 3, clause 3, article 149 of the Tax Code of the Russian Federation , letter of the Federal Tax Service of Russia dated 17.05.2005 N MM-6-03 / [email protected]).

Thus, VAT on the bank's remuneration for issuing a guarantee to an organization by a credit institution is not charged.

income tax

The issuance of bank guarantees refers to banking operations (clause 8, article 5 of the Federal Law of December 2, 1990 N 395-1 "On banks and banking activities").

In this case, the costs associated with paying for bank services can be taken into account either:

a) as part of other expenses associated with production and sale (clause 25 clause 1 article 264 of the Tax Code of the Russian Federation) or

b) as part of non-operating expenses as expenses for carrying out activities not directly related to production and (or) sales (clause 15 clause 1 article 265 of the Tax Code of the Russian Federation).

Thus, the organization has the right to independently determine to which particular group it will attribute the costs of paying for bank services to provide a bank guarantee in accordance with paragraph 4 of Art. 252 of the Tax Code of the Russian Federation.

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