The fulfillment of the guarantee requirement should not depend on the date of its receipt by the bank under Law No. 44-FZ
The winner of the purchase was found to have evaded the conclusion of the contract. The security guarantee did not comply with Law No. 44-FZ.
It included a condition: the demand for payment under the guarantee must be received by the bank before the expiration of its validity. After that, the customer does not have the right to pay out.
Supervisors and courts have declared such a condition illegal:
the execution of the claim depends on the date of its receipt by the bank, and not on the date of its dispatch;
the moment of receipt of the request by mail is not related to the will of the customer;
the right to payouts should not depend on third parties or the work of the email.
The courts also rejected the winner's argument that the customer knew about the non-compliance with the warranty, but did not inform him about it for re-registration. He informed the participant, drawing up a protocol on the recognition of the latter as having evaded the conclusion of the contract.
Similar conclusions about the reduction of the terms of granting claims under the guarantee were made, in particular, by the Vladimir UFAS and the Kirov UFAS. The Tatarstan Federal Antimonopoly Service, although it recognized the disputed condition as illegal, did not consider the winner to have evaded.
Document:
Resolution of the Moscow District Administrative Court of 17.12.2020 in case N A40-14754/20-2-77