Cassation: a bank can charge a fee for issuing a guarantee if the state customer has not accepted it
The customer rejected the guarantee because it did not comply with the notice and the law. The winner was recognized as evading, but the information was not included in the Register of Unscrupulous Suppliers. No violations were found in the actions of the customer.
The winner demanded a refund of the commission for issuing the guarantee, but the bank refused.
Three authorities collected money:
- the bank, as a professional, should be aware of the mandatory requirements for the guarantee. The fact that the winner agreed on its text does not exempt from liability for poor quality service;
- there is a causal relationship between the actions of the bank and the losses of the winner. The winner has incurred expenses to provide the security, to conclude the contract and to receive payment under it. At the expense of it, he planned, among other things, to compensate for the commission for the guarantee, but could not, because he did not enter into legal relations with the customer through the fault of the bank.
In practice, there is an example when the courts in a similar dispute did not charge a commission from the bank, since it is the winner who is obliged to check the text of the guarantee before sending it to the customer. The position was supported by the Supreme Court of the Russian Federation. However, in another decision, he agreed that a commission for issuing a guarantee could not be withheld if it did not comply with the law.
Document: Decree of the Arbitration Court of the Volga District dated October 27, 2022 in case N A65-3027/2022