Point of view... Whether the inconsistency of the guarantee period agreement is the guarantee period agreement is unknown.
Published:
2024-06-18
Does the inconsistency of the warranty period agreement belong to the unclear warranty period agreement?
The bank's business of borrowing new and repayable old is universal, but when the bank credit manager signs the Guarantee Contract, sometimes he does not explicitly indicate or agree in the Guarantee Contract that the purpose of the loan is to borrow new and repay old business, but rather stipulates in a separate Guarantor Commitment (or other guarantee commitment) that the guarantor is aware of the purpose of borrowing new and repayable old. However, due to various omissions in the credit process, it is easy to cause the guarantee period agreed in the Guarantee Contract to be inconsistent with the guarantee period agreed in the Guarantor's Separate Undertaking. If the bank files a lawsuit at this time, if it does not provide the Guarantor's Undertaking as evidence, it is likely that the guarantor will not be able to pursue the guarantor's guarantee liability because it cannot prove that the guarantor is aware of the use of the new loan for the old loan. If the Guarantor's Undertaking is provided, the guarantee period will be uncertain due to the inconsistency of the guarantee period.
Brief of the case
On December 31, 2019, Gao signed a "personal loan contract" with a commercial bank limited by shares (hereinafter referred to as a bank), agreeing that from December 31, 2019 to December 5, 2020, Gao borrowed 2.95 million yuan from the plaintiff for the purpose of borrowing the new to repay the old, implementing a fixed interest rate, paying monthly interest, and clearing the interest with the principal. On December 31, 2019, Qin and Cheng entered into a Guarantee Contract with a bank, agreeing that the guarantee period would be three years from the date of expiration of the debtor's performance of the debt. On the same day, Qin and Cheng issued two copies of the "Guarantor's Undertaking" to a bank, agreeing to provide joint and several liability guarantees for Gao's loan to borrow the new and repay the old, and the guarantee period is two years from the date of expiration of the loan period. On September 14, 2022, a bank sued the court to ask Gao to fulfill the repayment responsibility and Qin and Cheng to fulfill the guarantee responsibility.
Referee Points
Although the guarantee period agreed upon in the Guarantee Contract and the Guarantor's Undertaking is inconsistent, it does not fall under the "unclear agreement" of the law. Qin and Cheng both signed and stamped in the "Guarantee Contract" and "Guarantor Commitment", which should be regarded as the true meaning of the two. Therefore, a bank chose to calculate according to the shorter two-year guarantee period, which did not increase Qin., Cheng's guarantee responsibility. The expiration date of the term of the loan in question was December 5, 2020, and a bank filed a lawsuit on September 14, 2022, which did not exceed the two-year guarantee period, so it was not improper for the court of first instance to support a bank's claim that Qin and Cheng should assume guarantee responsibility.
case analysis train of thought
1. The case of "unclear agreement on the guarantee period"
In judicial practice, it is agreed that the guarantor shall bear similar contents such as "continuous", "continuous", "permanent", "forever", "until the guaranteed debt is paid off", "the guarantee period is consistent with the term of all principal claims", etc., because the content is an indefinite guarantee, which inappropriately aggravates the responsibility of the guarantor, and should be regarded as an unclear agreement on the guarantee period.
Related cases:(2015) Min Si Zhong Zi No. 23 Hong Zhaoshi and Huang Peide, Yi Jiaxi and other private lending disputes, (2018) Supreme Law Min Zhong Zi No. 892 Henan Xiangbo Investment Guarantee Co., Ltd., Henan Longhu Hotel Management Co., Ltd. and Luoyang Hengyuan Tunnel Materials Co., Ltd.
2. In this case, the Guarantee Contract and the Guarantor's Undertaking clearly agreed that the guarantee period is three years and two years respectively, and did not increase the responsibility of the guarantor indefinitely, so it does not belong to the situation of "the guarantee period agreement is not clear. Qin, Cheng in the "guarantee contract" "guarantor commitment" signed the seal, which is a high loan to provide security is its true meaning. The plaintiff may claim that the guarantor's liability can be realized without increasing the guarantor's liability during the period of confirmation of the guarantor's undertaking in accordance with the non-format clause.
Related cases:(2023) Yu 1002 Minchu No. 4518 case: (original and defendant) both parties agreed on two guarantee periods on the same day, which are three years and five years respectively. Although the guarantee period is inconsistent, the two guarantee periods are specific and clear, which does not belong to the situation of "unclear agreement" stipulated by law. Since the plaintiff is the party providing the format contract, according to Article 498 of the the People's Republic of China Civil Code, if there are more than two interpretations of the format clause, an interpretation that is not conducive to the party providing the format clause shall be made. Therefore, the court determined that the guarantee period of the defendants Wang, Gan and Wang should be three years, and the plaintiff's lawsuit in this case did not exceed the guarantee period.
Relevant laws and regulations
The the People's Republic of China Civil Code
Article 498 If a dispute arises over the understanding of a standard clause, it shall be interpreted in accordance with the usual understanding. If there are two or more interpretations of the form clause, an interpretation that is not conducive to the party providing the form clause shall be made. If the format clause and the non-format clause are inconsistent, the non-format clause shall be adopted.
Article 692 The period of guarantee is the period during which the guarantor is determined to assume the responsibility for the guarantee, without suspension, interruption or extension.
The creditor and the guarantor may agree on a guarantee period, but if the agreed guarantee period is earlier than the time limit for the performance of the principal debt or expires at the same time as the time limit for the performance of the principal debt, it shall be deemed that there is no agreement; if there is no agreement or the agreement is unclear, the guarantee period shall be six months from the date of expiration of the time limit for the performance of the principal debt.
If the creditor and the debtor have not agreed on the period of performance of the main debt or the agreement is unclear, the guarantee period shall be calculated from the date of expiration of the grace period for the creditor to request the debtor to perform the debt.
2. Interpretation of the Supreme People's Court on the Application of the Guarantee System in the the People's Republic of China Civil Code
Article 16 If the parties to the main contract agree to repay the old loan with a new loan, and the creditor requests the guarantor of the old loan to assume the guarantee liability, the people's court shall not support it; if the creditor requests the guarantor of the new loan to assume the guarantee liability, it shall be dealt with in accordance with the following circumstances:
(I) the guarantor of the new loan is the same as that of the old loan, the people's court shall support it;
(II) the guarantor of the new loan is different from the old loan, or if the old loan is unsecured and the new loan is secured, the people's court shall not support it, except where the creditor has evidence that the guarantor of the new loan knew or should have known the fact that the old loan was repaid with the new loan when it provided the guarantee.
The parties to the main contract agree to repay the old loan with the new loan. The guarantor of the old loan agrees to continue to provide guarantee for the new loan under the condition that the registration has not been canceled. Before the new loan contract is concluded, the people's court will not support it if the other creditors claim that the security right has priority over the new loan creditor.
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