Learn more about a bank guarantee without opening a current account. Bank guarantee in the auto business. The principal and beneficiary are the parties to the bank guarantee. According to the type of conditions, bank guarantees are divided into Bank guarantee without opening a current account

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Speaking in simple language, a bank guarantee is understood as a type of surety agreement, what is it and what is it used for? In this case, the responsibilities 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 more detail. in simple words!

Purpose

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

Drawing up a bank guarantee agreement is quite simple. The client company submits financial organization statement, and she undertakes to pay a certain amount to a third party(to the company's partner in the transaction).

The application can be submitted by both legal and an individual who is an individual entrepreneur.

This method has an advantage over others, previously listed methods of guarantee. An enterprise that has entered into a transaction with a bank confirms its solvency, gaining the opportunity to work without prepayment.

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

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

Most often, banks accommodate the company halfway if the transaction involves turnover large sum. Previously, such a bank guarantee scheme was used to secure foreign economic transactions. Today, having convinced myself of the reliability and simplicity of this method, many businesses use it, regardless of its size and organizational form.

Peculiarities

The peculiarity of this method– a guarantor, which is exclusively a bank or other credit/insurance institution.

Since this “paper” represents a certain credit product, it cannot be obtained without providing collateral.

When concluding an agreement to provide a bank guarantee, it can be securities, deposits, equipment, buildings, goods in circulation, apartments, transport, other assets, guarantees from other organizations/citizens.

After providing security the institution estimates its value. Wherein real cost is reduced to the price at which the property can be sold if an unforeseen situation arises. If the company fails to fulfill its obligations, the institution will implement material values or contact a guarantor.

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

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

Kinds

Guarantees vary depending on who they are issued to and for what purposes they are intended.

Types of bank guarantee:

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

Considered the most popular payment type , 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.

Companies require performance guarantees from their partners, to make sure there are no supply disruptions and all work will be completed on time. Otherwise, the financial institution will have to pay the amount specified in the agreement.

Bank guarantee – effective tool, which 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 - a specialist will tell you everything in this video:

This is due to the fact that using 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 requires borrowed funds and guarantees from third parties. However, there is something more significant and reliable, which we will discuss below. This article examines bank guarantees, what they are, what are their advantages. The material will be useful for both experienced players in the debt market and beginners.

What is a bank guarantee in simple words?

This is the bank's obligation to pay the lender a certain sum of money in case of violation of agreements under the contract by the supplier (contractor, performer). The payment is made on the terms and conditions stated in the guarantee document, which is drawn up in writing on a letterhead and certified with an official seal.

In the strict sense of the word, a BG is called an independent guarantee - the corresponding innovations were introduced in June 2015 into 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 types

Warranty obligations are a fairly common form of transaction security, used in many market segments. Depending on the ultimate goal recipient in practice, there are several types of bank guarantees:

• Tender. Mandatory security used in the public procurement procedure and guaranteeing compliance with the terms of the competition by the participant, as well as the further fulfillment of their obligations.
• Payment. Relevant in the field of trade credit, as well as for obtaining installment payments 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 is paid to the customs (tax) authorities in established by law cases.
• Executions. Ensures proper execution of the transaction by the contractor. Payments from the bank are due to the customer and are made in the event of failure to fulfill obligations by the counterparty under the agreement.
• Refund of payment. The bank reimburses the beneficiary for the amount of the unreturned advance payment.
• Loan repayment. The recipient of the guarantee payment is the creditor who issued the borrowed funds.

A bank guarantee is a serious help for business in various fields economic activity. In essence, a well-executed guarantee performs the function insurance policy for the lender and a letter of credentials certifying good faith and solvency for the borrower.

Parties to warranty obligations

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

The guarantor may be a bank or other credit institution, and commercial organizations. If the guarantee is issued by other entities, then it is equivalent to a guarantee agreement and entails other legal consequences for the parties to the agreement.

If a guarantee is required to participate in the public procurement procedure, it can only be issued by authorized bank, meeting 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 for tenders are registered in the Unified information system procurement Banks that have the right to issue guarantees under Federal Law 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 institutions.

By receiving a bank guarantee through an electronic exchange website, you don’t have to think about these subtleties - our services have “thought” for you, taking into account all the nuances of the procedure.

What should be included in the bank guarantee?

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

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

The document may contain additional clauses agreed upon by the parties:

• conditions possible change guarantee amount;
• circumstances for recalling the BG;
• the beneficiary's right to transfer claims to third parties;
• the moment the guarantee comes into force, if it does not coincide with the moment of its transfer (sending) by the guarantor and other conditions essential for the counterparties.

Issues not specifically specified are regulated by current legislative norms.

What are the advantages of a bank guarantee?

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

Many years of experience in this area allows us to assert that bank guarantees are much more profitable and convenient to use than other security measures, including sureties and collateral.

Advantages of BG:

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

2. Does not require withdrawal of money from circulation, as in the case of registration of a pledge. Borrowed funds will be even more expensive - 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 remains unchanged throughout the entire period of validity, unless the parties have agreed on other conditions, while a guarantee directly depends on the fate of the secured obligation.

4. In situations determined by law, it is the only possible means of security. Thus, in the field of tender procurement, a bank guarantee is defined by the special law Federal Law No. 44 as a mandatory component of admission to competitive bidding.

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

For a lender, such collateral is a proven, legitimate way to reduce its own risks and at the same time verify the financial position of the intended 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 warranty 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 that the borrower is applying for, or the legally established amount of payments.

3. The validity period 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 completed. In practice, the guarantor's remuneration ranges from 2% to 10% or is a fixed amount with a lower minimum threshold, calculated in rubles.

We need a guarantee. Where to begin?

1. Decide on a bank. If you managed to obtain collateral from a credit institution last time, it is not a fact that they will issue it to you again. In addition, the criteria for the “reliability” of borrowers differ for each organization - it is important to find “your” lender.

2.Apply with necessary documents to the selected institution. Perfect for both experienced and newbies electronic service allowing you to submit an application simultaneously to 30 partner banks of the exchange.

3.After verifying the financial status of the applicant, the bank will either reject or approve the application.

4.If the decision is positive, 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 use the benefits you've received!

We have 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 prepare warranty documents, you can use the website’s services 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 insurance organization (guarantor) gives, 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 submission 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 is enshrined in the Civil Code of the Russian Federation is fundamentally new for Russian legislation. Nothing like this had ever existed before.

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

Bank guarantees are 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 Civil Code Russian Federation on a bank guarantee.

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

Independence, independence from the obligation it provides, even if the guarantee contains a reference to this obligation (Article 370 of the Civil Code). In each specific case, a bank guarantee owes its existence to the main obligation, since it is impossible to provide for an obligation that does not exist. The independence of the guarantor's obligation is obviously manifested in the fact that, when considering the beneficiary's claim, 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 a possibility (Article 371 of the Civil Code);

Non-transferability of rights: the beneficiary can assign to a third party the right of 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);

Remuneration: for issuing 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 grounds to demand from the guarantor the fulfillment of the obligation provided for by the guarantee, but the documents attached to the corresponding request of the beneficiary do not comply with the terms of the guarantee, the guarantor refuses to satisfy such demand (clause 1 of article 376 of the Civil Code).

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

Three entities are involved in relations arising regarding a bank guarantee:

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

2) principal- a person who acts as a debtor in any obligation (credit, purchase and sale agreement, lease, contract, etc.). 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- creditor of the principal for the obligation secured by the bank guarantee.

Principals and beneficiaries can be any subjects of civil law.

Since 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 specified in the commented article are guarantee guarantees. It all depends on what content the participants in the relevant relationship fill the concept of “guarantee”.

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

Firstly, the initiative in establishing the relevant relationship is taken by the debtor under any obligation (the guarantee is given at his request), who, as a result of the issuance of a bank guarantee, becomes the principal. The position of the creditor of the said 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 that the debtor asks for, are dictated by the creditor’s requirements for the debtor (for example, when concluding a purchase and sale agreement 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 from a specific entity).

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

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

The debtor under any obligation (principal) turns to a bank, other credit institution or insurance organization (guarantor) with a request to give an obligation, subject to 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 to give a bank guarantee, the possible conditions of a future guarantee, the amount of remuneration that the future principal is willing to pay to a potential guarantor for issuing a bank guarantee, etc. can be set out here. The relationship between the principal and the guarantor regarding the issuance of a bank guarantee by the latter is regulated by their agreement, which establishes the amount of remuneration paid by the principal to the guarantor, defines the rights and obligations of the guarantor and the principal arising in connection with the payment by the guarantor to the beneficiary of sums of money in fulfillment of the latter’s requirements, etc. .

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

There are known cases of issuing bank guarantees, the validity of which expired on the day of fulfillment of the obligation secured by the guarantee established by agreement between the debtor and the creditor. Before this day arrives, it is still impossible to demand from the guarantor the fulfillment of his obligation (the beneficiary will not be able to indicate what the principal’s violation of the “main” obligation was). After the expiration of the period, it is no longer possible to submit a corresponding claim to the guarantor, since the guarantor’s obligation has ceased. The case when the bank guarantee expires before the deadline for fulfilling the main obligation can be characterized similarly. Courts usually proceed from the fact that in 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, the bank guarantee may provide for the right of the guarantor to revoke the guarantee, may provide for the conditions for revocation, may establish the right of the beneficiary to transfer the right of claim belonging to him by virtue of the bank guarantee to another person, may establish the period for the entry into force of the bank guarantee, and finally, may limit the liability of the guarantor before the beneficiary for failure to fulfill 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 technology This formalization 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 title 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 title, executed on the letterhead of the 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 presence of such “agreements” creates the illusion that a contractual relationship exists between the guarantor and the beneficiary. The embodiment of a bank guarantee in a form typical 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. Consequently, this is a one-sided transaction (clause 2 of Article 154 of the Civil Code). As a result, a unilateral obligation arises, according to which the guarantor undertakes to pay a certain amount of money to the beneficiary-creditor under the obligation secured by the bank guarantee.

6. As follows from the above, a bank guarantee very effectively ensures the interests of the creditor (beneficiary). It can be used to secure various obligations, including credit obligations. Another thing is that, while beneficial to the beneficiary bank, a bank guarantee is quite “dangerous” for the guarantor bank. Therefore, the guarantor bank usually strives to ensure that the principal’s recourse obligation, in turn, is secured by a pledge, surety, or even a bank guarantee. For example, the creditor (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 from Bank “B”, or by a pledge of certain property, or by a guarantee of a certain entity, etc.

The concept of “bank guarantee” is the most effective tool for ensuring the security of a transaction.

Essentially, this is a loan product that is much cheaper in equivalent 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 an obligation of the bank, set out in writing, that if they fail to comply with certain terms of the contract, they are obliged to pay the customer a specified amount of money.

This is necessary to achieve maximum efficiency in fulfilling the obligations specified in the contract. When concluding many transactions, it is this risk reduction factor that 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 providing this obligation, and he is also the executor of the main contract.
3. The third party, who is also the customer behind the main contract, is called the beneficiary, this is the person whose interests are protected.

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

There are bank guarantees such as:

• tender guarantee, also known as competitive guarantee. In the event that the winner of the tender for some reason refuses further cooperation, this guarantee can reduce the customer’s risks;
• performance guarantee. This type of guarantee minimizes risks during the delivery of goods, guaranteeing its timeliness and completeness. The same thing happens when performing any work or services;
• payment guarantee. Provides control over the timeliness of payments for services provided (work) or delivery 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 how obligations to these government agencies are fulfilled.

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

Why are bank guarantees needed?

To explain in simple language more clearly why bank guarantees are needed, it is better to use an example.

Consider the following scheme of work:

1. Company P (principal) decided to enter into a contract with company B (beneficiary), who 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. For this purpose, company P, who is also the principal and executor, attracts a guarantor, namely bank B, and receives from him necessary guarantee in a written form.
3. Next, bank B undertakes to undertake guarantees for the fulfillment of obligations, that is, to pay firm B, if firm 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 company P violates its obligations, then it can demand from the bank in writing that it fulfill 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 will demand reimbursement of the funds paid by the company P (principal).

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

Registration procedure

The registration procedure consists of the following stages:

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

You can search for a guarantor bank either independently or through a broker. It would even be easier to contact a bank that works directly without intermediaries, namely Sberbank.

What documents do you need to have?

Every bank that decides to take on a guarantee obligation primarily risks its own funds. The latter are spent if an occasion arises. Refunds under the contract must come from the client, who undertakes to pay them.

Risk is, of course, a noble thing, but not always justified. Securing obligations plays an important role when 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 government procurement, participation in tenders, and conducting operations on international level, accepting advance payment.

 

Concluding any transaction is a potential risk. Refusal to fulfill obligations by one party can cause serious material damage the other side.

Greatest risk arises for 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 refuses the contract.

A bank guarantee is a promise by the 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 concluded with such guarantees. For example, in transactions with the state, only a bank is required to act as a guarantor.

Such security is necessary for companies that work with the state and participate in competitions to receive orders, and for this they often need to provide a guarantor for its implementation. It is required for transactions:

• on government procurement;
• with the holding of a competition;
• with deferred payment;
• customs.

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

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

Parties to the agreement

There are 4 parties involved:

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

Bank guarantees under 44 Federal Laws are issued to legal entities and are used when concluding international transactions or conducting operations on domestic market. They are needed for insurance proper execution 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. As an option, 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 based on information provided by the Central Bank. Main requirements for banks:

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

Examples of banks that can be guaranteed:

• Rosselkhozbank (registration 2000, capital 287,541,037 thousand rubles);
• Sberbank of Russia (registration 1991, capital 2,535,918,643 thousand rubles);
• VTB (registration 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 government procurement. However, now they cannot carry out such activities.

Types of bank guarantees

A guarantor is required to ensure:

• fulfillment of obligations by the tender participant;
• execution of the contract;
• refund of advance payment.

First of all, a guarantor is needed to participate in a tender, auction or competition. They secure the participant’s application, and if the participant wins the auction, then the contract too. The validity period may vary depending on whether the company wins the tender. If not, then until the winner is announced, if yes, then for the duration of the contract.

Ensuring compliance with the terms of the transaction is also a common situation when you need to use a bank guarantee. If the bidder is the winning bidder, he must confirm that he will fully comply with all terms of the transaction. The guarantor must be present before signing the contract. If the terms of the contract are violated, the bank will pay penalties and fines.

A bank guarantee can become a guarantor of payment security. Provided if the customer makes an advance payment to the contractor. Its size may vary and is established by agreement. So, so that the contractor does not disappear along with the money, the customer may require security for this advance. Also, such a guarantee protects against misuse of funds.

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

Can the bank refuse?

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

What does the document look like?

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

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

The terms and conditions cannot be changed.

Who can use it?

Banking services can be used by both individuals and legal entities. However, the latter need it more. Not every company can count on receiving it. The reputation of the principal is important. It is easier for a large company with good turnover to obtain it. Having a current account in the required bank can also simplify the procedure. good credit history- another argument in favor.

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

When the contract ends

The contract is terminated if:

• the deadline has expired;
• the beneficiary received the money;
• the beneficiary has waived his 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 insurance in case of failure to fulfill the terms of the contract.

Thus, what is a bank guarantee and why is it needed? You can say in your own words that it 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, trades, and for concluding contracts at the international level. It can be provided by both banks and commercial organizations, depending on the purpose for which such a guarantee is required.

Bank guarantee– a written promise by a bank to pay another bank, company or someone else under a contract, loan or debt security for a third party in the event that this party fails to fulfill its obligations.

Note that a bank guarantee is a convenient tool for counterparties to 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 norm of legislation, a bank guarantee is a method of ensuring 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 undertaking 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.

The guarantor of a bank guarantee is a bank, other credit institution or insurance organization.

The principal of a bank guarantee is the debtor of the main obligation, at whose request the guarantor issues a bank guarantee. The principal can be any person.

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

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

Please 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 the guarantor bank.

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

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

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 the organization.

According to the bank guarantee, the bank undertakes the obligation to repay possible debt firms to the creditor at the request of the creditor upon the occurrence of specifically defined conditions.

In this case, the bank undertakes to pay the lender a fixed, pre-agreed amount.

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

Moreover, in the future, debt for purchased goods, works or services may not appear.

Advantages of a bank guarantee

The main advantages of a bank guarantee are:

low cost of a bank guarantee;

the ability to effectively resolve 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 assumed obligations under a 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 Russian Federation It follows that there is no obligation to enter into a contract 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 contract-contract on the issuance of a bank guarantee.

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

In this case, such an agreement on the issuance of a bank guarantee may stipulate the following conditions:

rights and obligations of the bank and the principal;

deadlines for providing bank guarantees;

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

calculation of bank remuneration;

reimbursement of bank expenses incurred;

type of contract security;

liability of the parties under the contract;

settlement of disputes;

other provisions.

Accounting of bank guarantees

The cost of a bank guarantee is included in the asset during the purchase or creation of which the bank guarantee was acquired.

Transactions for the purchase of a bank guarantee are reflected in accounting as follows:

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

The guarantee of payment received from the bank under a contract or delivery agreement is included in the cost of the asset.

Such postings are made when forming the cost of all inventory items.

Value added tax (VAT)

Services for providing a bank guarantee are related to banking operations.

Moreover, 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", paragraph 3, paragraph 3, article 149 Tax Code RF, letter of the Federal Tax Service of Russia dated May 17, 2005 N MM-6-03/404@).

Thus, VAT on the bank’s remuneration for issuing a guarantee to the organization credit institution not presented.

Income tax

The issuance of bank guarantees relates to banking operations (clause 8 of 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 sales (clause 25, clause 1, article 264 of the Tax Code of the Russian Federation) or

b) in the composition non-operating expenses as costs of 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 which group it will include the costs of paying for the bank’s services for providing a bank guarantee in accordance with clause 4 of Art. 252 of the Tax Code of the Russian Federation.

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The procedure for obtaining a bank guarantee is similar to the procedure for obtaining a loan: the necessary conditions for organizing a guarantor are filling out, collecting and submitting a mass of papers, including photocopies of the company’s constituent papers, complete financial statements for the past year, as well as for the last three reporting periods.

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You can get a bank guarantee without opening an account or collateral, and in some situations without guarantors in the form of businessmen.

Why is it beneficial?

A bank guarantee is a written obligation of a banking organization to pay the creditor, in accordance with the terms of the obligation given by the guarantor, money upon the principal's provision of a written request for payment.

Since opening an account for settlements requires a large number of papers, and registration takes a lot of time, many entrepreneurs are now trying to resort to the help of material services with the least amount of time.

In this situation, the possibility of receiving a bank guarantee without opening an account is beneficial for the organization.

As for tender BGs, they usually talk about short deadlines. Organizers of competitions and grants for various works will not wait for one of the competitors to complete a BG to ensure the fulfillment of their obligations under the agreement in the event of victory.

At the same time, banking without opening a current account takes up to two days, which is a big reason for choosing this banking product.

Terms of service

In general, we can say that providing a bank guarantee without opening an account is a common occurrence, but more often this applies to working with guarantees of up to 10-15 million rubles.

Conditions

Video: Making the right choice

Documents for obtaining a bank guarantee without opening a current account

To assess the likelihood of issuing a balance sheet statement, you need to provide such papers:

• Application for the purchase of BG.
• Competitive and auction papers.
• BG project following the example of the customer (if any).
• Financial statements for the past five periods.
• Certificates TIN, OGRN.
• Extract from the Unified State Register of Legal Entities (for JSC, extracts from the register of shareholders).
• Copies of passports/data of passports of founders, general. director, chief accountant.
• Company charter.

In addition to the specified papers, the guarantor organization may require: certificates of money turnover for the past months, certificates from the tax office confirming the absence of tax debts.

If the organization has loans, the guarantor bank will need to bring certificates of debts on existing loans.

Price

The price of a BG may vary depending on the personal characteristics of the principal organization, its solvency and lending history, as well as mandatory parameters such as a good reputation and a stable position in the market for the services provided by this organization.

• The fee for issuing a bank guarantee depends on several criteria:
• From the guarantee amount, from which you need to pay from 1 to 5%, and sometimes 25%.
• Warranty issue time. The lower it is, the more the security costs.
• The preference of the guarantor, because in a competitive environment, each organization sets its own prices for services.

Presence or absence of collateral. So, in the absence of the latter, the level of risk of the guarantor organization increases, and therefore it can double the price of the guarantee.

Who issues

Banks prefer to cooperate with stable organizations that provide the lowest risks for providing guarantees.

BGs are issued by banks that have confirmed compliance with the requirements of the law, have been recognized as financially stable and are included in the list of the Ministry of Finance and Art. 176.1. Tax Code of Russia.

It is necessary to note several more points that affect the likelihood of banks to act as guarantors, namely: the bank’s activity has been no less than for 5 years and the presence of its capital, which exceeds 1 billion rubles.

Applicants can directly contact the bank to complete this type of transaction, which will take a lot of time. Or you can go to brokerage company, it will simplify the registration process by choosing the most suitable option from a whole list of banking organizations in accordance with the customer’s requests, taking on the responsibility for preparing all the necessary documents.

Occurrence of a warranty case

A guarantee case is the fact of violation by the principal of his duties to the beneficiary established in the guarantee itself.

The occurrence of a guarantee situation entails the obligation for the beneficiary to provide the guarantor with a written request for payment of the unfulfilled obligation.

The guarantor must pay the amount agreed upon in the BG within the established warranty period. Often the occurrence of a guarantee situation results in disputes between the parties to the transaction, but such conflicts are easily resolved with the help of the courts.

How to apply

• In order to register a BG without opening an account, you need to take the following steps:
• Provide the bank with a number of documents: an application addressed to the manager of the financial institution and a client questionnaire issued by the bank.
• Provide a package of financial papers.
• Make and bring to the bank a copy of the competition application and the terms of the competition or loan agreement. Be sure to attach copies of legal documents to the documents. faces.
• Based on these papers, the banking organization will assess the financial situation of your organization and agree or refuse to issue a guarantee.

If the decision is positive, draw up and sign an agreement with the bank. Pay and get BG.

Time of action The operating time of the BG usually coincides with the duration of the main duty of the principal.

But shorter terms of operation of guarantees are possible in cases where short-term obligations are subject to security. For example, this type of guarantee may apply to the delivery of goods in a short time as part of a full range of work.

Peculiarities

BG operation period

• Subjects. As a guarantor there can only be a credit or Insurance Company(Article 368 of the Civil Code of Russia).
• BG compensation. For the vacation of the BG, the principal pays a reward to the guarantor (clause 2 of Article 369 of the Civil Code of Russia).
• Independence of the bank guarantee from the main obligation. The obligation of the performer to the customer provided for by the BG does not depend on the main obligation to ensure the fulfillment of which it was issued, even if the guarantee contains a reference to this obligation (Article 370 of the Civil Code of Russia).
• The BG cannot be revoked by the guarantor unless it provides otherwise (Article 371 of the Civil Code of the Russian Federation).
• Non-transferability of rights under a bank guarantee. The right of claim against the guarantor belonging to the beneficiary under the BG cannot be given to another person, unless otherwise provided in the guarantee (Article 372 of the Civil Code of Russia).

According to requests to the BG, it can be issued using two methods:

• On paper in writing.
• A virtual document that meets the requirements of current legislation.

Advantages and disadvantages

Pros:

• A big advantage for both parties to the transaction is the prompt registration of the BG. Many organizations issue it within one day after application. Therefore, the additional security procedure does not delay the signing of the main agreement.
• Finding a guarantor is easy: in the financial market this service is provided not only by many banking organizations, but also insurance companies.
• BG is trusted. The reputation of the guarantor plays a big role here.
• Easy to complete a banking agreement and receive a refund.

Minuses:

• You must pay for registration of the BG. And although the cost of opening and maintaining a bank account is less than the interest on the loan, the principal incurs extra costs.
• BG does not stop working to fulfill his main responsibility.
• For the lender of the principal obligation, there is a risk associated with the revocation of the license of the bank that issued the guarantee.

A bank guarantee without opening an account is a beneficial tool for an organization, because it is quickly issued and satisfies the interests of each party to the transaction.

Since advantages for one side often result in disadvantages for the other, it is necessary to find a balance point when the two sides can cooperate profitably. Hello, dear colleague! In this article about obtaining a bank guarantee. This topic is relevant for most procurement participants who have become winners in government tenders or want to use BG as security for an application. For this reason, I will try to consider in as much detail as possible all the stages of obtaining BG, and will give you a step-by-step algorithm that will allow you to painlessly overcome each stage. There will be quite a lot of information, so you can make yourself a cup of coffee and spend 10-15 minutes studying the article. And so, let's go...

1. The concept of a bank guarantee

Step 2. Find out from the selected bank under what conditions it is possible to issue the required financial statement, as well as what list of documents should be provided to obtain it.

Step 3. Agree on a tariff.

Step 4. Fill out an application for obtaining a BG and send it along with a package of documents.

Step 5. Agree on the BG project.

Step 6. Pay the bill.

Step 7 Get BG.

This is what the process of obtaining a bank guarantee currently looks like.

Actions of the procurement participant after registration of the BG

Step 1. Receive the following package of documents from the banking institution, which should include:

1. one copy of the concluded agreement on the provision of a bank guarantee;
2. the original of the BG itself;
3. extract from the register of bank guarantees.

Step 2. Check the issued guarantee for its compliance with those established in Article 45 of 44-FZ.

9. How much does a bank guarantee cost?

And at the end of today’s article I would like to say a few words about the cost of a bank guarantee. The process of obtaining a bank guarantee is similar to obtaining a loan from a bank. In essence, this is a service, the cost of which depends on supply and demand for it. And as you know, demand creates supply. Therefore, the cost of registering a BG in different banks may vary significantly.

Let's take a look at what can affect the final cost of the BG.

Firstly, this is the amount of the guarantee amount.

Secondly, this is the subject and validity period of the BG.

Third, this is the presence or absence of collateral (collateral). A guarantee without collateral costs more. Currently, the commission for issuing BG ranges from 1% to 10%. On average it is 3-5%. Below you will find an example of calculating the cost of a BG provided as security for the performance of a contract.

Example of calculating the cost of a bank guarantee

Suppose a procurement participant wins a repair contract kindergarten. NMCC for this facility is 30,000,000 rubles. The amount of contract performance security established in the documentation is 30% of the NMCC, i.e. 9,000,000 rubles. The period for repair work under the contract is 12 months (1 year). For example, let's take interest rate for issuing BG equal to 3%.

Now let's calculate the cost of the BG:

30,000,000 x 30% x 3% x 1 = 270,000 rubles.

Thus, it turns out that in order to receive an order worth 30 million rubles, the winner needs to purchase a BG for 270 thousand rubles, which is much more profitable than withdrawing 9 million rubles from the organization’s turnover for 12 months and transferring them to the Customer’s account.

That's all for today. See you in the next articles.

P.S.: If you liked the article, then “like” it and share it with friends and colleagues on social networks.

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