The Contractual Regulating Coverage Relationships in Suretyship

Abstract

The article analyzes the aforementioned (but not named in the law) agreement on the provision (issue) of surety and its influence on formation of the “debtor-guarantor-creditor” relationship. This agreement has not been studied in the civil law, but is of interest from practical and academic sides as well. The paper substantiates the inability to match the figure in such a relationship of the debtor and the guarantor in one person. Despite the fact that for the conclusion of the contract of guarantee is necessary to have the will of a guarantor and the creditor, participate in the normal development of the situation of the debtor himself in the appearance of the guarantor in the relations is beyond doubt. Such a relationship between the debtor and the guarantor may be based not only on extra-legal relations of personal friendliness, service, or related corporate dependence, but can also flow from the contract of surety. The article defines the legal nature of the transaction and its similarity to the individual agreements, such as the contract of commission, the paid services, errands, providing independent assurance. The author comes to the conclusion about the independent legal significance of contractual regulation of relations arising between the debtor and the guarantor at the stage of formulating the terms of future security. The possible content of agreement on the provision of surety is determined, in particular, the right to include in such an agreement the terms of the fee paid to the guarantor for the issuance of security, the definition of the amount of the reverse claim of the guarantor to the debtor, etc. is justified. It is also considering issue of the influence of the defects of the coverage relationship on the fate of issued guaranty, the prospect of contesting the guarantee agreement on these grounds is evaluated. Although the European legal order provides ample protection to non-professional guarantee, in comparison with security given by entrepreneurs or in entrepreneurial activity, in the Russian judicial practice such persistent approaches are no longer fundamental. The article justifies the rationality of the pro-creditor approach in matters of maintaining the security, despite the existence of explicit prerequisites for recognizing voucher agreement as invalid, including for reasons of fraud or significant delusion.