The state customer did not accept the security guarantee — the courts did not collect a commission from the bank for receiving it
The winner issued an independent guarantee and paid a commission for it. The customer did not accept the security and recognized the winner as evaded, since it did not comply with Law No. 44-FZ and the terms of purchase.
According to the winner, if the customer has not accepted the guarantee, the bank has no obligations under it. So, he did not render a service and must return the commission as unjustified enrichment. The bank did not do this. The winner appealed to the court.
Three instances did not satisfy the claim:
the winner agreed on the draft guarantee with the bank without comments. The guarantee fully answered him. At the same time, the bank should not find out from the customer what wording to include in it in order to comply with the requirements of the purchase;
under the guarantee agreement, the remuneration was paid for the very fact of its release. The money can be returned only when the guarantee has not been issued or a smaller amount has been indicated in it. The bank has fulfilled its part of the transaction, and it has no reason to return the commission;
it is the winner who needs to check the terms of the guarantee before sending it to the customer. This obligation was not imposed on the bank.
Recall that a similar position was recently supported by the Armed Forces of the Russian Federation. However, in another decision, he agreed with the position of the courts that it is impossible to withhold a commission for issuing a guarantee if it does not comply with the law. This service assumes that the bank not only transfers the guarantee, but also accepts the obligation to ensure the execution of the contract. It does not occur if it is not concluded.
Document:Resolution of the AC of the Moscow District of 19.05.2022 in the case N A40-150656/2021