deficiency guarantee


The deficiency guarantee is a special form for guarantees, although this is not regulated by the other types of guarantees under the Civil Code. Although the default guarantee is not regulated by law, it is used in the banking sector and is recognized by the jurisprudence, for example by the Federal Court of Justice. A guarantor is liable for a loan amount, if the borrower does not meet his financial obligations. And this is exactly where the normal one differs Guarantee from the debt guarantee.

Different forms exist

In the event of a default guarantee, a guarantor will not be held liable until the creditor has carried out the foreclosure of the borrower as a lender. This is decisive for the default guarantee, which is the foreclosure to the assets of the borrower has been unsuccessful. In this case, enforcement must include all possibilities, including insolvency and the utilization of all attachable assets with the borrower. If this is the case, the so-called failure has occurred and thus the default guarantee takes effect. Where one has to be careful here, as unsuccessful and thus also as a failure, it is also true, although in the context of the enforcement can be accomplished something, but the sum achieved is not sufficient. In such a case, too, liability may arise, which then only then restricts itself to the residual amount from the debt sum. This is also referred to as the normal default guarantee. In addition to this form, there is also a special form, namely the modified guarantee in the event of a failure.

This is a modified default guarantee

A modified guarantee in case of a failure, contains special regulations. There may be significant differences from the procedure described above. Thus, a guarantee in the event of a default can also take place much earlier, without which the creditor must comprehensively and long-term enforcement. Thus, the guarantor's liability to pay may start at a default of 3 months by the borrower, or upon opening of the insolvency proceedings. Thus, in the case of a modified guarantee, the date of payment and thus the start-up by the guarantor can begin much earlier. But here, too, the enforcement is a core that must be fulfilled. Of course, there may also be exclusions or further regulations, for example the elimination of collateral. Where one must also be careful, not every regulation is also legally durable. Thus there are also anti-moral regulations such as the Federal Court of Justice in the past has already clarified several times in its jurisprudence. This includes, for example, the complete waiving of a foreclosure by the borrower and the direct claim by the guarantor in the event of default. Such a regulation is self-sufficient and therefore unreal. Furthermore, the creditor must always be able to prove that he has carried out all measures in the context of enforcement. If this is not the case, a claim by the guarantor is unlawful in the context of the default guarantee. As with a normal guarantee, regardless of whether a normal or modified guarantee is involved, a transfer of the rights should be made by the guarantor. After the claim by the creditor, the guarantor has a legal title against the original borrower in the same amount for enforcement in the property.

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