The Contractual Regulating Coverage Relationships in Suretyship

Abstract

The article analyzes the aforementioned (but not named in the law) agreement on theprovision (issue) of surety and its influence on formation of the “debtor-guarantorcreditor”relationship. This agreement has not been studied in the civil law, but is of interestfrom practical and academic sides as well. The paper substantiates the inability to matchthe figure in such a relationship of the debtor and the guarantor in one person. Despitethe fact that for the conclusion of the contract of guarantee is necessary to have the will ofa guarantor and the creditor, participate in the normal development of the situation of thedebtor himself in the appearance of the guarantor in the relations is beyond doubt. Sucha relationship between the debtor and the guarantor may be based not only on extra-legalrelations of personal friendliness, service, or related corporate dependence, but can alsoflow from the contract of surety. The article defines the legal nature of the transaction andits similarity to the individual agreements, such as the contract of commission, the paidservices, errands, providing independent assurance. The author comes to the conclusionabout the independent legal significance of contractual regulation of relations arisingbetween the debtor and the guarantor at the stage of formulating the terms of futuresecurity. 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 theguarantor for the issuance of security, the definition of the amount of the reverse claimof the guarantor to the debtor, etc. is justified. It is also considering issue of the influenceof the defects of the coverage relationship on the fate of issued guaranty, the prospectof contesting the guarantee agreement on these grounds is evaluated. Although theEuropean legal order provides ample protection to non-professional guarantee, incomparison with security given by entrepreneurs or in entrepreneurial activity, in theRussian judicial practice such persistent approaches are no longer fundamental. Thearticle justifies the rationality of the pro-creditor approach in matters of maintainingthe security, despite the existence of explicit prerequisites for recognizing voucheragreement as invalid, including for reasons of fraud or significant delusion.
For citation: Trezubov E.S. (2019) The Contractual Regulating Coverage Relationships in Suretyship. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 1, pp. 112–132 (in Russian) DOI: 10.17-323/2072-8166.2019.1.112.132