A bank guarantee is one of the most effective tools for ensuring the security of a transaction.

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By its nature, it is a credit product, but it is many times cheaper than a cash loan. For the provision of these services, the bank takes its own interest - a commission.

What it is

A bank guarantee is a written obligation of the bank to pay a certain amount of money to the customer in the event of failure by the contractor to fulfill the terms of the contract.

This instrument ensures the proper fulfillment of contractual obligations. For some transactions, this method of risk reduction is the main condition for cooperation.

There are three subjects involved in this process:

• guarantor - a financial institution that undertakes an obligation for a certain fee (commission);
• principal - the executor (debtor) under the main contract, the initiator of the provision of the obligation;
• beneficiary - the customer (creditor) under the main contract, whose interests are protected.

Kinds

The main classification of bank guarantees is based on the type of transaction being secured.

Guarantees are provided:

• tender (competitive) – reduces the customer’s risks if the winner of the tender refuses further cooperation;
• performance guarantee – guarantees timely and full delivery of goods, performance of work or provision of services;
• payment – ​​ensures timely payment for work performed or goods delivered;
• advance – guarantees the return of the advance payment in case of failure to fulfill the terms of the transaction in terms of volume or terms;
• customs, tax – ensures proper fulfillment of obligations to these government agencies.

There are other types depending on the purposes of the main transaction. Bank guarantees are also divided according to other criteria - revocable and irrevocable.

Why do you need a bank guarantee in simple terms?

To explain what a bank guarantee is in simple language, it is convenient to use an example.

The scheme of work is as follows:

• company X (principal) enters into a contract for the supply of a consignment of goods with company Y (beneficiary), who is the customer or buyer of this product;
• firm Y requires guarantees that the terms of the contract will be fulfilled properly - the goods will be delivered in full and on time;
• for this purpose, company X or the executor under the contract engages a third party - bank Z (guarantor) to obtain a guarantee in the form of a written document;
• the guarantor bank, for a certain fee, undertakes to pay to form Y the agreed amount, for example, 30% of the amount of the main contract in the event of its failure to be fulfilled by company X;
• upon the occurrence of such a warranty event, Company X must demand payment of remuneration in writing;
• Bank Z will pay the agreed amount to the beneficiary and demand recourse from Firm X to reimburse the funds paid.

There is another way to secure a transaction - a cash deposit, but for this, the executing company must withdraw the required amount of money from circulation. This is unprofitable, especially since it is often necessary to attract borrowed funds, which is 8-10 times more expensive.

Stages of registration

The entire registration procedure is described in seven stages:

1. the need to secure the transaction arises;
2. search by the contractor for a guarantor bank under the contract;
3. writing an application for a guarantee;
4. submitting an application and package of documents to the bank;
5. checking the client's solvency;
6. conclusion of an agreement between the bank and the client;
7. drawing up a guarantee agreement;

You can search for a suitable bank yourself or through a broker. You can also contact any branch of Sberbank, which works exclusively directly without intermediaries.

Video: What participants need to know

Package of documents

By issuing a guarantee obligation, the bank risks its own funds, which must be paid upon the occurrence of the guarantee obligation. l teaching. In the future, the client is obliged to return these funds, so the bank must make sure that the client is solvent.

The required package of documents depends on the specific bank, but its main components are:

• questionnaire, application;
• copies of TIN, extract from ERGYUL, issued no more than 30 days ago;
• a notarized copy of the minutes of the constituent meeting, a copy of the registration certificate;
• an up-to-date list of all LLC participants and copies of their passports;
• copies of licenses and certificates;
• lease agreements or ownership of premises;
• copies of documents authorizing the manager and chief accountant, as well as their passports;
• a copy of the draft secured transaction;
• balance sheet, profit and loss report for the last year;
• financial statements for the last six months;
• with the simplified tax system you need a declaration of income and expenses for the last year, with UTII - a tax declaration;
• certificate of absence of debts;
• audit report, etc.

The bank may also require copies of documentation on successfully completed similar contracts and similar confirmation of the company’s reliability.

Requirements

Before the bank agrees to issue a guarantee, the client will be checked for financial stability.

The principal company must meet the following requirements:

• period of activity on the market for at least 6 months;
• turnover must correspond to the amount of the obligation;
• there should be no unprofitable periods in the reporting except for seasonal ones;
• there should be no overdue debts in your credit history, and sometimes the bank requires no loans;

Often you need to have a current account at the same bank.

Sample

The law of the Russian Federation does not dictate strict requirements for the drafting and appearance of a bank guarantee agreement. However, the regulatory framework dictates the main provisions that must be included in this agreement.

Main legislative documents:

• for state and municipal contracts - Law 44-FZ;
• for certain types of legal entities - Law 223-FZ;
• clause 4 art. 368 part 1 of the Civil Code of the Russian Federation.

Samples of basic documents:

How to check in the register of guarantees

All guarantees issued on the basis of Law 44-FZ must be entered into the Register. To check, you need to visit the portal of the Unified Information System in the field of procurement. According to Art. 45 clause 11 of Federal Law No. 44-FZ, information must be entered into the system within one day from the date of registration of the warranty obligation.

Other guarantees issued on the basis of 223-FZ are not included in the register; they can be checked on the Central Bank website in the section of the directory of credit institutions. Here you need to find the bank, the turnover sheet and column No. 91 315 - turnover on guarantee obligations.

In column No. 91 325 you will see a figure that should be compared with the amount of the guarantee obligation:

• zero or less – turnover does not reflect the issuance of a guarantee;
• equal or greater - the bank issues guarantees.

However, for small amounts, data is allowed to be entered at the end of the quarter.

List of banks

The Ministry of Finance provides a monthly list of banks that are allowed to issue bank guarantees. Therefore, you can find information about the list of such financial institutions on the Ministry of Finance website.

Validity of receipt

In order for the beneficiary to receive the amount of remuneration under the guarantee, justification is required.

These reasons could be:

• the contractor did not fulfill the terms of the transaction;
• the contractor refuses to provide documents certifying the proper execution of the contract;
• in case of violation of the terms of the main transaction by the contractor.

The list of required documents must be specified in the guarantee agreement.

Cost and example of its calculation

The key concept of consumer protection legislation is the guarantee of product quality. It means that a citizen who has purchased a defective item has the right to exchange it for a similar one, receive a refund, or request free repairs from the manufacturer’s service center. The refusal of the retail outlet to satisfy these wishes is unlawful; it can be appealed in court.

What is a product warranty?

What is the warranty period? This is the period during which the seller (manufacturer) is obliged to satisfy the legal requirements of the consumer for the goods purchased by him of inadequate quality. The store does not have the right to refuse a customer if he used the product in accordance with the instructions, and its breakdown is due to a manufacturing defect.

The warranty period of the product begins from the moment of its purchase. If this date is unknown, then the production day is taken as the starting point. If the duration of the guarantee is not determined, in accordance with Art. 477 of the Civil Code of the Russian Federation, it is taken equal to two years.

The warranty period can be determined by the manufacturer and the seller. The second does not have the right to shorten the period indicated by the first, but can extend it.

When the period specified by the manufacturer expires, the manufacturer declines all obligations to provide free repairs and replacements. They fall on the shoulders of the seller; the consumer must address the requirements to him. This situation occurs if the product was delivered for a long time, was stored in a warehouse, or was not sold.

The store will diligently evade fulfillment of warranty obligations, so in order to avoid problems when making a purchase, you should pay attention to the production date of the item.

Current legislation does not regulate the minimum warranty period. It is set by the seller based on his own considerations of inconsistency. protects Art. 477 Civil Code of the Russian Federation. It states that if the warranty period has expired, but the two-year time interval has not passed, the customer has the right to contact the seller to eliminate defects that arose due to the fault of the manufacturer. It is the citizen’s task to prove that the defect is related to a manufacturing defect.

Warranty and non-warranty case

The presence of a warranty on a product means the following consumer rights:

• demand free repairs to eliminate the malfunction;
• exchange an item for a similar, but high-quality one;
• return the money paid.

The seller will insist on the first option, because refunds and exchanges create an additional problem for him - the need to deal with the manufacturer and receive a refund.

Repairs under product warranty are carried out at service centers that have entered into an agreement with the manufacturer. In the contract, the latter stipulates that the center provides services at its own expense, and then receives compensation.

The manufacturer's specialists carefully check each case to make sure that it is 100% guaranteed. The service center is not sure that it will receive a refund, and therefore its specialists are doing everything possible to force the buyer to repair the product at his own expense. The cost of repair services is often comparable to the price of a new product.

When refusing free repairs when a product breaks down, service centers traditionally use the following arguments:

• The devices were imported into the Russian Federation unofficially.
• Using the equipment, the client violated the manufacturer's instructions. For example, the device was dropped, got wet in water, or was subjected to other mechanical impacts.
• Traces of attempts by the buyer to independently repair the product under warranty were found. Even if the client believes that he is doing everything carefully, specialists will find traces of intrusion into the device body. Example: these are identifiers that change color when in contact with moisture, opening the phone, etc.
• Use of low quality consumables. For example, the printing device broke down due to the use of cheap paper, non-original cartridges, etc.

Buyers keep track of the date on which the warranty period for goods begins, but do not specify whether they have the right to receive free repairs in the event of a breakdown. If the warranty card is not filled out, the service center employees will refuse due to the lack of a serial number. The consumer will have to agree to repair it at exorbitant prices or save money for a new product.

How to get my money back?

If the buyer has not expired the warranty period for the product, it is better not to agree to repairs, so as not to face a refusal and not incur unnecessary expenses. According to the law on consumer protection, the client has the right to demand that the retail outlet return the money spent or replace the item.

You can express your wishes orally, but it is better to make a written claim so that you can later use it as evidence in court. Current practice demonstrates that it should include the following:

• name and address of the store;
• Full name of the buyer, his contact details;
• date of purchase from which the warranty days are calculated;
• information about the low-quality product (model, brand, registration number, etc.);
• the essence of the defect;
• the warranty period that is established for the item;
• specific requirements of the claim maker (exchange, refund, repair);
• personal signature of the author, date.

The claim is prepared in two copies: one is given to the seller, the second remains with the client with a mark of acceptance. You can deliver the document in person or send it by registered mail.

See sample here:

After submitting the claim, the seller has 10 days to make a decision. The period begins to be calculated from the moment of actual receipt of the document. During the specified time period, the seller must conduct an examination of the product and find out whose fault the malfunction occurred. Based on the results of the inspection, the store returns the buyer’s money (fulfills other requirements) or gives a justified written refusal.

If the store responded with silence, the consumer has the right to go to Rospotrebnazor or court. Practice shows that retail outlets prefer to return funds so as not to tarnish their reputation.

Guaranteeing the quality of goods is the responsibility of sellers under Russian law. They independently determine the period during which the buyer can make claims in the event of a breakdown or detection of significant defects.

In this article we will talk in detail about the concept and features of the warranty period established for the product.

The concept of product warranty period

The warranty period is the period during which the consumer, upon detection of any shortcomings and defects in the purchased product, can present to the seller (manufacturer, authorized organization or individual entrepreneur, importer) demands regarding the quality of the product (return, replacement, free elimination of the defect , price reduction, etc.), and they are obliged to satisfy the legal requirements of the consumer (clause 6 of Article 5 of the Law on the Protection of Consumer Rights).

The warranty period is established for durable non-food products. For food products, as well as non-durable and disposable goods, such as cosmetics, perfumes, sanitary and hygiene items, medicines, dietary supplements, household chemicals, the manufacturer must set an expiration date.

Warranty periods vary depending on the nature of the product. For example, for cars and other transport these periods are set from two years, for household appliances from six months, for clothes and shoes from one to several months or a year. If we are talking about a shared construction project, then a special law on shared construction obliges the developer to establish a warranty period for such an object for at least 5 years.

It is necessary to take into account the operating conditions and the owner’s compliance with the rules of use, storage or transportation of the goods, i.e. actions of the consumer themselves can lead to premature wear and damage to the product.

Article 476 of the Civil Code of the Russian Federation and paragraph 6 of Article 18 of the Law on the Protection of Consumer Rights directly stipulates that the seller is responsible for product defects identified during the warranty period, only if it does not prove that the defects arose precisely through the fault of the consumer himself after the goods were transferred to him, i.e. for reasons beyond the control of the seller or manufacturer.

We are talking about those cases when a thing fails completely or partially with proper and correct use.

It happens that you buy new boots or a coat, and a month later you discover a tear in the fabric, a peeling sole, characteristic stains in the color of the product, a broken zipper, or a hole in a leaky place on the fabric, or a recently purchased household appliance or expensive gadget suddenly breaks down. In such cases, one can raise the question of inadequate quality of the product; we can also talk about a manufacturing defect of the product.

Who sets the warranty period for a product?

According to Article 5 of the Law on the Protection of Consumer Rights, the warranty period for a product can be established:

• Manufacturer
• By the seller (if the warranty period is not established by the manufacturer)

As we see, first of all, the manufacturer has the right to establish a warranty on a product, while the seller acquires such a right only in the absence of a factory warranty.

Thus, the law excludes the possibility of establishing two guarantees for the same product.

The procedure for calculating warranty periods is set out in Article 19 of the Law on the Protection of Consumer Rights.

The warranty period for the product begins to expire:

• If the agreement between the seller and the consumer does not establish special dates for the start of the warranty period of the goods - from the moment the goods are transferred to the consumer.
• If the day of purchase of the goods is unknown - from the moment of manufacture of the goods
• For seasonal goods - from the beginning of the corresponding season, and if the product was purchased during the season - from the moment of transfer (delivery - in the case of remote purchase) to the consumer (read more about this below)
• When selling goods by samples or by mail - from the moment the goods are delivered
• If the day of sale and the day of delivery of the goods do not coincide - from the moment of delivery of the goods
• If it is impossible to establish the date of delivery, installation, assembly, connection of the goods - from the moment of conclusion of the purchase and sale agreement (day of purchase)
• If special installation (connection, assembly) of the product is required, or if the product has defects, the warranty period is suspended until the seller eliminates the specific circumstances

The warranty period for (download in doc format), as well as for goods purchased on sale, is calculated according to general rules.

Warranty period for seasonal goods

When purchasing a seasonal product, i.e. of a product intended for use and operation in a certain season of the year, the warranty period begins to run not at the time of purchase of this item, but from the moment the corresponding season begins after purchase. If a product is purchased based on samples, or purchased remotely and received by mail, or delivered by courier, then the warranty period should be calculated from the moment the buyer receives the product.

If the product is purchased after the start of the season for which it is intended, then the warranty for it begins to run from the moment of purchase or delivery.

So, for seasonal goods, the warranty period begins:

• As a general rule - with the onset of the corresponding season
• When purchasing goods after the onset of the corresponding season - from the moment the goods are transferred
• When purchasing goods remotely (by mail or by samples) - from the onset of the corresponding season
• When purchasing goods remotely (by mail or by samples) after the onset of the corresponding season - from the moment of delivery of the goods

There is no officially approved list of seasonal goods in our country, but Article 19 of the Law on the Protection of Consumer Rights stipulates: clothing, shoes, etc., so most often we are talking about winter, demi-season, summer shoes or outerwear. We believe that this also includes, for example, alpine skiing and other winter sports equipment, the use of which in our country is possible only during the winter season.

Anyway, to determine the seasonality of a product one should proceed from the purpose of the product, from information about it, take into account its characteristics and operating rules in general.

Each subject sets its own start dates for the seasons, which is explained by different climatic conditions in different parts of the country, and they are determined by the local legislation of each subject of the Russian Federation.

The following dates for the onset of seasons have been established for St. Petersburg (Law of St. Petersburg dated May 28, 1997):

• Winter season – from December 5
• Spring season – from March 17
• Summer season – from June 2
• Autumn season – from September 12

Product without warranty period

Let us remind you that the consumer can return the goods during the warranty period.
However, establishing a warranty period for a product is not the responsibility of the manufacturer or seller, but their right.
Don’t be surprised if, after purchasing something, you discover that there is no warranty period. This does not mean that if a defect is detected, such a product cannot be returned.

The requirements established by Article 18 of the Law on the Protection of Consumer Rights regarding the quality of goods for which there is no warranty period can be presented if:

• Defects in the goods were discovered within a reasonable time, but within two years from the date of delivery of the goods
• The consumer will prove the occurrence of the defect before the goods were sold to him, or for reasons that arose before that moment (in the event of a dispute about the nature of the defect)

It is best to contact the seller (manufacturer) immediately upon discovering a defect in the product, without waiting for a two-year period, and completely exclude further use of the item, since in the event of a trial, it is possible to conduct an expert examination of the product in order to establish the causes of the defect. Therefore, it is in the consumer’s interest to report a defect immediately after its discovery, this will allow the nature of the defect to be most accurately determined. The court can determine the reasonableness of the period for identifying a defect if the dispute is not resolved pre-trial, based on the features and characteristics of the goods, as well as the terms usually established for similar goods.

The product warranty period has expired

The expiration of the warranty period of a product does not always exclude the possibility of its return or exchange if defects are found in it outside the warranty period.

According to paragraph 5 of Article 19 of the Law on the Protection of Consumer Rights, the consumer has the right to present a claim to the seller or manufacturer regarding the quality of the product if:

• The warranty period for the product is less than 2 (two) years
• The defect was discovered after the expiration of the warranty period, but within 2 (two) years
• The consumer will prove that the identified defect arose before the seller transferred the goods to him, or for reasons that arose before the sale of the goods to him (in the event of a dispute about the nature of the defect)

Here's an example: The warranty on the phone is 1 year; during the first year, warranty repairs were carried out, but during the second year of operation, the defect reappeared in the phone. In this case, despite the expiration of the warranty period, the consumer will have the right to make a claim to the seller for the return, replacement or repair of the phone, only on the condition that the consumer provides evidence that the identified defect is of a hidden manufacturing nature, i.e. arose before the transfer to him, or for reasons that arose before the sale of the goods. Such evidence will be an independent expert opinion confirming this fact. The examination is carried out at the expense of the consumer, and if it confirms the manufacturing nature of the defect, you can present to the seller (manufacturer) one of the requirements provided for in Article 18 of the Law on the Protection of Consumer Rights, attaching an expert opinion to the claim, and you can demand reimbursement of the costs of the examination.

In addition, the manufacturer or seller may voluntarily take on additional responsibilities in relation to product defects discovered outside the warranty period established by the manufacturer.

The conditions, terms and procedure for fulfilling the additional obligation are established by the manufacturer himself. When such an obligation is accepted by the seller, all conditions are specified in the agreement (contract) between the seller and the consumer.

If additional obligations of the manufacturer or seller exist, but a dispute has arisen between the parties regarding the nature of the defect, the following nuances must be taken into account distribution of the burden of proof nature of the identified deficiency:

• If defects in the goods are discovered during the period of the additional obligation of the manufacturer or seller, the burden of proving the nature of the defect lies with the manufacturer or seller.
• If after the expiration of the additional warranty, but within two years after the transfer of the goods to the consumer, then the burden of proving the occurrence of defects in the goods before its transfer to the consumer or for reasons that arose before that moment falls on the consumer himself.

The manufacturer may establish a warranty period separately for components or components of the main product (clause 3 of Article 19 of the Law on the Protection of Consumer Rights). The warranty period for them is calculated in accordance with the general procedure.

Therefore, a return or exchange of component parts of the product is possible. regardless of the quality of the main product.

There are the following features of the warranty period for components and components of the main product:

• If the warranty period for a component product or component is set to be shorter than for the main product, the consumer has the right to make a claim regarding the quality of such product or part of the product during the warranty period for the main product.
• If the warranty for a component product or component of a product is greater than the warranty for the main product, the consumer may make a claim regarding the quality of the product provided that defects in the component product are discovered during the warranty period for this product, regardless of the expiration of the warranty period for the main product.

What additional information do you need to know about the product warranty period?

• The warranty period of the product is extended for the period of warranty repair (clause 3 of Article 20 of the Law on the Protection of Consumer Rights)
• When replacing a product, the warranty period begins again, i.e. from the moment of replacement (clause 2 of Article 21 of the Law on Protection of Consumer Rights)
• When replacing a component product or component of a product, the warranty for the new product or component begins again, i.e. from the moment the goods are returned from repair (clause 4 of Article 20 of the Law on the Protection of Consumer Rights)
• The warranty period is calculated in units of time: years, months, days; and other units of measurement, depending on the functions and purpose of the product: kilometers, meters, etc. (clause 3 of Article 5 of the Law on the Protection of Consumer Rights)
• Information about the warranty period for the product is indicated in the warranty card, in the receipt or in the sales contract. The manufacturer's warranty is usually stated in the technical documentation for the product.

Product expiration date. Product service life and warranty period

When purchasing a food or non-food product, most buyers always check the expiration date or service life of the product.

What you need to know about the expiration date:

• The expiration date is mandatory set by the manufacturer (performer) for food, cosmetics, perfumes, medicines, household chemicals, hygiene items, dietary supplements and other similar products.
• If there is no expiration date, or after the expiration of this period, such goods are prohibited for sale, since they can pose a serious danger to the life and health of the consumer.
• The consumer has the right to make a claim to the seller (manufacturer) during the shelf life of the product

What are the features of the product service life:

• The service life is set by the manufacturer for durable goods, at will. During the service life, the manufacturer undertakes to ensure that the product is suitable for its intended use, i.e. the product must serve while maintaining the qualities declared by the manufacturer, and in the event of significant defects in the product, the manufacturer must bear responsibility for them as provided by law.
• For durable goods and their components, which after a certain period may become dangerous to the life and health of the consumer, as well as to the environment, or cause damage to the consumer’s property, the manufacturer is obliged to establish a service life so that the requirements for product safety can be met, i.e. e. the consumer must be informed for what period of time such a product is safe to use. The list of such goods was approved by Decree of the Government of the Russian Federation dated June 16, 1997 No. 720 (as amended on May 10, 2001).

Consumer rights when a significant defect in a product is discovered during the service life of the product:

• If during the service life of the product, even after two years after the delivery of the product to the consumer (or within 10 years if the service life is not established), a significant defect is discovered in it, the consumer has the right to present to the manufacturer or authorized organization or importer a demand for free repair .
• The only condition for presenting the above requirement is that the consumer must prove that a significant defect arose before the goods were transferred to him or for reasons that arose before that, i.e. production or hidden nature of the deficiency.
• The manufacturer is obliged to satisfy the requirement to eliminate a significant defect in the product free of charge within 20 (twenty) days from the date of filing the claim.
• If the consumer's request for gratuitous elimination of the defect within 20 days is not satisfied, the consumer has the right to demand replacement or return of the goods, or make other demands provided for in Article 18 of the Law on the Protection of Consumer Rights.
• If an examination of a product establishes that a defect identified during its service life (or within 10 years in the absence of a service life of the product) is irreparable, the consumer has the right to immediately demand that the manufacturer or importer exchange or return such goods (clause 6 of Article 19 of the Law on protection of consumer rights), bypassing the stage of free elimination of product defects.

It’s good when an agreement between two organizations is fulfilled in full and on time. And if not? How can the customer protect himself from possible non-fulfillment of the contract? You can ask the performer for a deposit in the form of a certain amount of money. But how many companies are capable of withdrawing large funds from circulation so that they lie idle until the end of the contract? To solve this problem, there are bank guarantees. We’ll talk about how they work, what the procedure for obtaining it is, and how much a bank guarantee costs in this article.

Bank guarantee- this is the bank’s obligation to pay a certain amount to one of the parties to the agreement if the other party to this agreement does not fulfill its obligations. Something between a loan and insurance.

For example, in order to participate in a tender or government procurement, the contractor usually must deposit a certain amount into the customer’s account - as a guarantee that after winning he will not refuse to carry out the work or supply the goods. If a performer participates in dozens of competitions, there may simply not be enough money to provide for everyone. Then an agreement is concluded with the bank: the latter undertakes in writing to pay the amount required as collateral if the contractor does not carry out the work or deliver the goods. This is a bank guarantee. For its provision, the bank charges a commission in the form of a percentage of the guarantee amount.

The purpose of a bank guarantee is not only to reimburse the customer’s expenses in the event of failure to fulfill obligations, but also to weed out unscrupulous contractors and suppliers. The bank checks the solvency of the contractor, his assets, and based on this information makes a decision on issuing a guarantee. For fly-by-night companies and suppliers from various “black lists” this will already become a barrier.

For the contractor, a bank guarantee is a type of loan, only significantly cheaper, since the company does not receive real money.

For a bank, providing guarantees is good business, because the risks of proper verification of performers are minimized and guaranteed. If the executor violated the contract and the bank paid the required amount, it receives the right to demand compensation from the executor.

Who is involved in providing a bank guarantee?

There are special terms to refer to participants in a bank guarantee. In total, three subjects are involved in the process:

1 Beneficiary– the customer (individual or legal entity) to whom the bank provides a guarantee. It allows you to protect the interests of the company, which receives compensation in the event of non-fulfillment of the contract.

2 Principal– an individual or legal entity, the executor of the contract for whom the bank provides a guarantee. The contractor initiates cooperation with the banking institution and pays the cost of its services.

3 Guarantee– an organization that guarantees that in the event of failure to fulfill the contract (payment is not made, the necessary actions are not carried out by the executor-principal), the beneficiary will be paid a pre-agreed amount. The following may act as a guarantor:

• Banks (when participating in government procurement under 44-FZ, the bank you choose must have an authorized capital of over 1 billion rubles, have no claims from the Central Bank of the Russian Federation, and most importantly, must be included in the register of authorized persons on the Ministry of Finance website).
• Insurance companies (only payment guarantees for commercial contracts).
• Microfinance organizations and (also only for commercial contracts).

It is clear that the level of trust in guarantees from different guarantors will also be different: when participating in government procurement, you will not receive a commitment from the MFO “Money for a Week”; only a document from a serious and large bank in accordance with the above requirements will be valid.

Types of bank guarantee

The specific type of guarantee provided by the bank to the beneficiary depends on the type of transaction. Eat five main types of bank guarantee:

1 Competitive (or tender) guarantee– is necessary in order to prevent the winner of the tender from refusing to fulfill the order. In government procurement, it is mandatory for auctions and ranges from 10 to 30% of the maximum contract price. A variation is a guarantee of contract performance, when the bank, if necessary, compensates for losses from violation of the contract.

2 Payment guarantee– the bank guarantees the customer of work, goods or services payment within the period strictly specified in the contract.

3 Customs guarantee– the bank guarantees the Federal Customs Service the return export of equipment temporarily imported into the country, for which, by law, customs duties are not paid. If the contract is violated, the bank pays an amount equivalent to customs duties.

4 Tax guarantee– is relevant, first of all, for exporting companies and manufacturers of alcohol, tobacco and other excisable products. Makes it possible to return VAT immediately, without waiting for a desk audit. It also allows you to avoid making advance payments on excise taxes.

5 Contract performance guarantee– the bank will pay compensation to the beneficiary if the principal fails to complete the work or deliver the goods on time.

6 Advance guarantee– the bank guarantees the return of the advance given by the customer to the contractor if the contract is not fulfilled.

Bank guarantees and according to the terms of their provision on the:

• secured And unsecured– depending on whether the principal provides any property to the bank as collateral or not;
• conditional And unconditional: in the first case, the bank pays the amount required under the guarantee only after the beneficiary proves that the principal has not fulfilled the terms of the agreement. In the second case, the payment is made at the first request of the beneficiary without providing evidence;
• straight And reverse (counter-guarantees)- depending on who will pay for the guarantee. With a direct guarantee, the bank with which the principal entered into an agreement pays, and with a counter-guarantee, another bank is involved. A variation is syndicated guarantees, when the obligation is provided by several financial organizations at once (most often used in large international transactions);
• revocable And irrevocable– to participate in government procurement, only the latter are required, which the guarantor is obliged to fulfill under any circumstances. Revocable guarantees are those that the bank can revoke before execution if it receives information about a significant change in the circumstances of the transaction. For example, it turns out that the principal is insolvent.

What documents are needed for a bank guarantee?

Each guarantor has its own requirements for the set of documents of the principal, but the basic package is the same for everyone. This:

In addition, the guarantor may require from the principal documents on similar successfully completed transactions and other evidence of the solvency and reliability of the company.

How a bank guarantee is provided: scheme and stages

Initially, the bank guarantee had a simple written form, certified by the bank’s seal and the signature of the responsible person. (Clause 2 of Article 368 of the Civil Code of the Russian Federation). However, as technology develops, this form is being replaced by an electronic one, which is certified by the digital signature of a specialist from the guarantor bank (clause 3 of the resolution of the Plenum of the Supreme Arbitration Court “On certain issues...” dated March 23, 2012 No. 14). The paper document is issued to the principal at a bank branch or sent by mail. The electronic document is sent via electronic communication channels.

Scheme of a trade transaction using a bank guarantee

1 Company “A” (seller, principal) offers company “B” (buyer, beneficiary) to supply a certain product.

2 Company “B” requires company “A” to guarantee that the goods will be delivered on time in the required quantity and with the required quality.

3 Company “A” applies to bank “C” to obtain a bank guarantee in writing.

4 After checking firm “A”, bank “C” issues a written undertaking to firm “B” to pay an amount predetermined by the parties (for example, 15% of the contract value) if the supplier violates the terms of the contract.

5 If a violation occurs, firm B contacts bank C with a written demand to pay compensation under the guarantee. If the bank guarantee was conditional, company B must also provide evidence of violation of the terms of delivery of the goods.

6 Bank "C" pays the guarantee amount to firm "B".

7 Bank “C” seeks reimbursement from company “A” for the funds paid (pre-trial or in court, in accordance with the agreement between the principal and the guarantor).

Forms of providing a bank guarantee

Form 1. Classic.

The principal responds to the standard offer of the bank he has chosen. This is usually done by companies that need a guarantee for a large amount - from 20 million rubles. In this case, issuing a bank guarantee takes 2-3 weeks, since the bank needs to conduct a full check of the client regarding his ability to fulfill the main agreement with the beneficiary.

Form 2. Accelerated.

This option is offered by some small banks, as well as brokerage companies that act as intermediaries between principals and guarantors. In this case, the guarantee is issued within 5 working days. The amounts are less significant than in the case of classic design - most often from 5 to 15 million rubles, less often - from 15 to 20 million.

Form 3. Electronic.

The fastest and easiest way to obtain a bank guarantee. The application is submitted to the bank or broker company in electronic form, signed with an electronic digital signature. The guarantee is also provided in the form of a certified electronic document, which the principal can send to the beneficiary via electronic communication channels. This form is used to guarantee amounts in the range of 1 - 5 million rubles, and is distinguished by a simplified procedure for checking the solvency of the principal. Also, it is in the field of electronic financial statements that the largest number of fraud cases is observed.

Stages of obtaining a bank guarantee

The sequence of actions of the principal depends on the type of transaction. Here we will look at the standard type, when you first contact the guarantor, and only then participate in government procurement or enter into an agreement with the beneficiary.

1 Assessing your own situation

Before applying for a bank guarantee, you need to look at your business from the outside and evaluate your strengths and weaknesses. Based on the practice of the Russian market, in order to successfully conclude a bank guarantee agreement, the principal company must:

• Work in your sector of the economy for at least six months.
• Have a turnover that allows you to fulfill your obligations under the contract.
• Do not have long periods of losses in the reporting (seasonal “subsidence” in relevant areas is allowed).
• Do not have overdue debt; some banks do not provide guarantees to companies with existing loans.

2 Choice of guarantor

Of course, it is better if the guarantor is a bank from the list of the Ministry of Finance, then your guarantee will be entered into the appropriate register, and any beneficiary will accept it. If the guarantor is recommended by the customer himself, and you do not have any serious objections, do not refuse - this will increase confidence in you. It’s good if you already have a current account with the guarantor bank, then the guarantee will be approved faster. It is believed that cooperation with a local bank familiar to you (or a territorial branch of a federal bank) will be more reliable, but in the case of an electronic guarantee this point is no longer so relevant.

3 Collection and provision of documents

The list of required documents is given above. They need to be collected on time, since some - an extract from the Unified State Register of Legal Entities or a balance sheet - are valid (from the point of view of receiving a bank guarantee) for a certain time. If you are receiving an electronic guarantee, you will need to sign the documents (some guarantors require notarization) and scan them.

4 Consideration of the application

The guarantor reviews the principal's application from 5 to 20 days, depending on the type of guarantee requested. The fastest way to verify documents is when applying for a small amount and an electronic bank guarantee. When guaranteeing large sums, the bank may give your business a tough check, request information about cooperation with you from your counterparties, and so on, you need to be prepared for this.

5 Conclusion of an agreement between the principal and the guarantor

Typically, the principal has few opportunities to influence the text of the agreement - for large banks it is standard. The most important points are the rights and obligations of the parties, the content and amount of the guarantee, the amount of remuneration to the guarantor, and the validity period. However, the law does not oblige the parties to enter into a written agreement. If the guarantor does not object, the obligation can be issued after an oral request from the principal.

6 Payment of remuneration to the guarantor

The principal always pays remuneration to the guarantor before the occurrence of the guarantee event. This is one of the reasons why it is necessary to carefully analyze the status of the guarantor before entering into an agreement. If you run into a scammer and it turns out that the guarantee is not included in the register, the beneficiary will not accept it, and the money has already been paid, it will be difficult to return it. If you issue a guarantee through a broker, you will have to immediately pay a percentage of the intermediary’s remuneration.

7 Issuance of a bank guarantee

In paper or electronic form, you will receive the text of the bank guarantee, your copy of the guarantee agreement, and an extract from the register of bank guarantees certified in garnet (in case of requesting obligations for a transaction under 44-FZ).

The law does not provide a sample guarantee text, so each bank sets its own form. The customer also has the right to establish the form when publishing the tender documentation.

If you are going to participate in government procurement, be sure to check the availability of the guarantee in the register on the government procurement website after receiving the document from the guarantor. Article 45 of Law No. 44-FZ states that information on the issuance of a guarantee must be included in the list of such obligations no later than one day from the date of registration.

Other guarantees can be checked on the website of the Central Bank of the Russian Federation (cbr.ru) as follows: select in the left vertical menu Information on credit institutions/Directory of credit institutions/Name of your bank/Turnover sheet data/column 91315 (turnover on guarantee obligations).

The validity of a bank guarantee begins from the moment of its issuance, from the date of receipt by the beneficiary or from a specific date specified by the principal and guarantor in the agreement.

8 Using a bank guarantee

The beneficiary will be able to receive from the bank the amount required under the guarantee if:

• the principal will not fulfill the terms of the agreement with the beneficiary;
• the principal refuses to confirm the execution of the contract with the beneficiary with documents;
• for other reasons specified in the bank guarantee agreement.

The principal is not involved in the guarantee payment process; this is a matter of two-way interaction between the beneficiary and the guarantor. But then the guarantor turns to the executor with a demand to compensate for the damage, and here the dispute can be settled out of court, or the guarantor will recover damages from the principal through the court.

How much does a bank guarantee cost?

The cost of a bank guarantee is significantly lower than the price of borrowed money for a conventional loan. The specific percentage depends on the amount of the guarantee, its validity period, as well as the degree of risk of non-fulfillment of the contract between the principal and the beneficiary. The cost of the guarantee is also affected by the presence of collateral, surety and security. The rate range for bank guarantees in 2018 is 2-10%. Often, the guarantor limits the lower limit of the value of the guarantee to an exact amount - for example, 10,000 rubles. And even if you guarantee a deal for 50,000 rubles, you will still give 20% of this amount to the guarantor.

The contract amount is 6,000,000 rubles. Guarantee amount = advance amount under the contract = 30% of the contract amount (2,000,000 rubles). Duration – 1 year. The bank guarantee rate is 6%.

The cost of a bank guarantee = 2,000,000 *0.06 *1 = 120,000 rubles.

You will pay this amount to the bank, which guarantees the payment of 2 million rubles to your customer if you do not fulfill the terms of the contract.

FAQ

There are two types of bad faith guarantees: counterfeit (this is when the principal himself fabricates the document, this rarely happens) and “gray”. In the second case, any provision of a guarantee in which the information is not entered either into the register of guarantees under 44-FZ or into the list of guarantee obligations of the credit institution can be considered fraudulent. That is, the guarantee is fictitious. In order not to fall into the trap of fake brokers (most often it is they, not banks, who deceive guarantees), you need to be especially careful in the following cases:

• Small number of requested documents. If the guarantor is ready to vouch for you, having received only a couple of scans with your TIN and balance sheet, this should already become an alarming factor.
• An abnormally low percentage of remuneration under a guarantee (more than 1.5 times lower than the average market level - for example, if most banks are ready to provide you with a guarantee at 5-7%, and one person agrees to 3% - this is a reason to think about a possible fictitious transaction ).
• Unusually short guarantee approval period – this point especially needs to be monitored when working with brokers and electronic guarantees. No matter how loyal the bank is to you, it still must check the capabilities of your company and its solvency.

Why are the requirements for bank guarantees in government procurement different from ordinary commercial contracts?

Any contract must be executed, however, in the case of contracts with state or municipal organizations within the framework of the federal law “On State Procurement” (44-FZ), we are talking about payment for goods, work and services with budget money. Accordingly, the state sets more stringent requirements for such transactions. Guarantees are accepted only from banks included in the register of authorized representatives of the Ministry of Finance. The bank rating must be at least “BBB-” (“moderate level of creditworthiness”).

The guarantee must be irrevocable; its validity period must be at least 30 days longer than the period for the completion of work/delivery of goods under the main contract between the beneficiary and the principal.

Please note that from July 1, 2018, a bank guarantee can be used to ensure both the execution of a government contract and participation in all types of government procurement (tenders, open and closed auctions).

Does a customer in government procurement have the right to demand a guarantee from a bank from the list of the 50 largest in the Russian Federation by assets?

According to the Law “On Public Procurement”, the beneficiary cannot limit the principal in choosing a guarantor bank; only the following requirements must be met: the bank is in the register of authorized representatives of the Ministry of Finance, its authorized capital exceeds a billion rubles, the bank does not have any comments from the Central Bank of the Russian Federation.

Is it possible to save the contract if the customer finds out that the warranty is “gray”?

If you have been working with the beneficiary for a long time, and he values ​​the partnership with you, and perceives the situation with a fictitious guarantee as an accident, you can replace the obligation with a real one within 10 days. Otherwise, the contract will be terminated, and you will be included in the register of unscrupulous suppliers and will not be able to participate, for example, in government procurement or tenders of large companies. If the conspiracy of the principal with the guarantor is proven, this is already Article 159 of the Criminal Code of the Russian Federation “Fraud”.

Conclusion

A bank guarantee is an obligation of a credit institution to pay a certain amount as compensation for damage if the contractor violates the terms of the contract with the customer. The latter in this tripartite transaction is called the beneficiary, the executor is the principal, and the bank is the guarantor.

Bank guarantees are used most often in the field of public procurement, where contract enforcement is established by Federal Law No. 44-FZ. At the same time, the legislation establishes strict rules for providing obligations. They must come from banks recommended by the Ministry of Finance, be irrevocable and meet other requirements, which we described in detail in this article.

In the commercial sphere, bank guarantees are also used, especially when it comes to tenders of large corporations. The cost of the guarantee varies depending on the bank, amount and duration. Typically, credit institutions charge from 2 to 10% of the obligation amount for their services. The period for consideration of the application and issuance of the document is from 3 to 20 days, the fastest way to receive it is in electronic form, but the percentage of “gray” (not included in the register) guarantees here is high.

The legislation allows the use of guarantees not only from banks, but also from other organizations - insurance companies, microfinance organizations, credit unions. They are not suitable for government procurement, but quite suitable for ordinary transactions. But the cost of such obligations may be higher than that of banks, and the reliability – much lower.

In order not to get into trouble, not to lose a contract and not to be included in the register of unscrupulous suppliers, it is necessary to focus not so much on the terms of the guarantee, but on the reliability of the guarantor organization.

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If you find an error, please select a piece of text with your mouse and click Ctrl+Enter About the author

Experienced professional journalist. I like to understand complex financial issues and convey them to ordinary people in simple and accessible language. My goal is to help people improve their level of financial literacy, share interesting money tricks and secrets with others, so that people become richer, freer and happier.

Do you know what guarantee will definitely not work? Something like this:

“Our garbage removal company provides an excellent guarantee, if for some reason you are unhappy with our work, then we will definitely return your garbage in double amount.”

In all other cases, you can confidently offer your customers the most daring guarantees!

How does the warranty work?

Do you think they announced the Super Guarantee, and crowds of customers, stupefied with happiness, rushed to your company? This just won't happen.

The main purpose of the guarantee is completely different. It is not intended to dramatically increase sales, but to increase the trust of potential clients in you. Plus, having a warranty can make you stand out from your competitors. “They apparently doubt the quality of their products, since they cannot guarantee anything,” the consumer will decide.

This bright thought will lead to the fact that in most cases he will choose a company that offers guarantees (even the most ridiculous ones - up to a guarantee of a good mood from the purchase).

What guarantees can be offered to clients?

There are three main types of guarantees:

• on the price

Have you ever come across loud statements like “if you find exactly the same product, but cheaper, we will refund you the full price and pay extra on top”? Why don't you do the same.

- Wow! – the potential client will think. – Apparently, they really have everything super cheap if they are afraid to offer such a guarantee.

• for quality

The classic version of the guarantee: “If you are dissatisfied with the quality of the product (service), we will return your money.” The promise to give a gift in exchange for your time and nerve cells works well.

• for delivery times

Such guarantees are offered by almost any company that operates a courier service. For example, a pizza production and delivery company. “If you do not receive our delicious and hot pizza within 60 minutes, we will give it to you for free,” is how their guarantee usually sounds. By the way, here the client also has excitement mixed in: suddenly they will be late, and the pizza will actually get for free.

What if I go broke on these guarantees?

Simply put, you also need guarantees that your business will not collapse due to the wave of this unheard of generosity J

So, if you give a guarantee on the price (“if you find it cheaper, we’ll give you your money back”), then it wouldn’t hurt to play it safe and make branded packaging for your products. Then the buyer will certainly not find it anywhere exactly the same product cheaper than your company. If you offer any services, then you can give a guarantee for a certain package of services, which is not identical to any competing company.

In the case of a delivery guarantee, everything is also simple: you subtract the cost of the goods from the earnings of the employees who were at fault. After all, this is really their jamb: the product must always be delivered to the consumer on time.

It turns out that the guarantee is not as scary as many beginning entrepreneurs imagine it to be. But the benefits from it are enormous!

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P.P.S. Think about what guarantees you could offer your clients. Share your thoughts in the comments to this article.