The courts supported the bank, which refused to pay the state customer under an independent guarantee
The customer refused the contract due to improper execution. Later, he turned to the bank to get the amount of the penalty and the unprocessed advance from the guarantee funds. The bank did not pay because the claim and documents did not comply with the terms of the guarantee and the law.
Three instances did not recover the money:
- the claim did not meet the warranty conditions. It covered the payment of penalties without refund of the advance and damages. The customer agreed with this and signed a contract. The guarantor does not have to reimburse the amount of the advance;
- the fact that the bank acted illegally, since it secured only part of the obligations, was not proved. His actions corresponded to the principle of the guarantor's free will;
- the customer is obliged to check the software. If he accepted an incorrect guarantee, then he himself bears the risks of consequences. This should not increase the amount of the guarantor's obligations if he acted in good faith;
- the demand for payment was presented when the transaction was already terminated. The guarantee forbade it;
- according to Law No. 44 and the terms of the contract, the customer is obliged to send claims to the contractor for the payment of a penalty. He did not do this, there was no information about its accrual in the Unified Information System. The guarantor checked this fact and found that the obligation provided by the guarantee did not arise.
In practice, there is an example when the customer also asked to collect from the bank the amount of penalties and an undeveloped advance from the guarantee funds. The courts partially satisfied the claim:
- penalties were collected. The fact that the customer did not require the contractor to pay them before contacting the bank does not matter. The guarantee did not oblige to this;
- the advance was not collected. Under the terms of the guarantee, the contractor had to violate the obligation before the customer applied for payment. The claim was sent to the bank when the cancellation of the contract has not yet entered into force. The customer did not have the right to refund the advance at that time.
Document: Resolution of the Arbitration Court of the Volga District of 17.03.2023 in case N A12-13401/2022