Aval

The Bankaval or guarantee credit (from Italian avallo - " change", this hiwala of Arab - " mandate ", " change" ) is in the banking industry, the acquisition of bonds, guarantees and other guarantees by banks on behalf of bank customers in the context of the lending business. The term Aval is also available for the signing of a bill by an additional person so liable as well as the drawee and the exhibitors of the change.

General

The credit business of credit institutions consists in part of the lending by issuing loans and lending of all types, which legally includes current accounts and overdrafts. On the other hand, banks are liable as surety or guarantor for the purposes of contingent liabilities, so assume the risk of liability for commitments it has entered into with third parties their bank customer. Here they make no money available ( so-called " money lending "), but are liable as guarantor for example, with their name ( so-called " Kreditleihe ").

Legal bases

The guarantee facility in Germany is a banking business in accordance with § 1 No. 8 of the German Banking Act. Then it is only banks, exceptionally, permitted insurance companies to take on bank guarantees for their customers. Not unlike the case of money lending, the Bank acts in Avalkreditgeschäft as lenders, the bank customer is a borrower. Basis of the guarantee facility is a loan agreement with the borrower, who has completed the acquisition of a contingent liability by the bank to the object ( Avalkreditvertrag ). The Avalkreditvertrag be made in writing within the gewillkürten writing ( § 127 BGB). The legal relationship between the bank and guarantee creditors example applies law of suretyship; the legal relationship between bank and bank customer is characterized by a pecuniary Agency Agreement, by which it takes over the bank through payment of a guarantee commission, to vouch for the benefit of their customers towards its creditors.

With guaranteed credit is a relationship between three parties. The bank is for example guarantor pursuant to § 765 BGB, the bank customer is liable to pay the guaranteed obligation or service to be provided, the creditors of the bank customer is also favored creditors of the bank guarantee. From the perspective of the bank is in its capacity as guarantor to a contingent liability, because they first must assume that the bank customer fulfills his obligation or guaranteed performs its promised performance and will void the bank guarantee. Does not happen, the contingent liability of the bank turned into a real liability to the creditors of the bank customers. The bank pays as guarantor for their not able to pay or voluntary customers, making 774 of the Civil Code and the corresponding conditions of the credit agreement goes according to § the requirement of the guaranteed creditor by way of subrogation automatically on the bench. The credit risk of the bank is that the bank assess the likelihood of their use from its contingent liability and enforce when claiming their right to reimbursement against their bank customers must try.

The under the guarantee facility issued by the bank guarantee is 765-778 BGB and § § regulated in § § 349-351 HGB. The guarantee is legally however, not regulated. It is a contractual legal agreement within the meaning of § 311 BGB, the contents of the contract partners can largely determine the scope of the freedom of contract itself. In international business, the banks, as a rule of customary international warranty, which is payable on first demand and for an explanation of the beneficiary ( for example, that the customer has not fulfilled its contractual obligations ).

Because of the guarantee of the guarantor is ( = the avalerstellende Bank).

• Stand up for one 's future success or
• To assume the responsibility for a future, not yet incurred damage.

International, among others in 1991 an attempt was made ​​to create a uniform guarantee conditions, which led to Uniform Rules for Contract Guarantees of the International Chamber of Commerce.

Accounting law, 251 HGB are reported as liabilities " in the balance sheet " guarantee loans pursuant to §. Also in accordance with § 19 Section 1 of the Banking Act of guarantee credit belongs to the " other off-balance sheet transactions". Unlike money loans are guaranteed credits not recognized in the balance sheet itself, but as contingent liabilities under the balance sheet as " off-balance sheet business " and are therefore not part of the balance sheet total. Commitments on the Avalkreditgeschäft and endorsements Jump will be added to the total assets to determine which is important for financial institutions yardstick of business volume.

Avalarten

• Anzahlungsaval Backs from the payment amount for a supply or investment.
• Bietungsaval: adhering Bank ensures that a contract or penalty may be paid by the bidder in a tender, if he does not fulfill his obligations acquired in tender or the contract is not signed after award.
• Gewährleistungsaval: Backs up the warranty claim of a builder or investor.
• Rental payment guarantee: to secure a lease, whereby the deposit position is replaced by the tenant.
• Prozessaval: in connection with a foreclosure courts may require selbstschuldnerischer guarantees in its judgment the position. The Prozessaval is either the execution, or averting a foreclosure.
• Wechselaval: Saves the change from creditors, is used economically for credit enhancement of a change, thus enabling a more favorable refinancing. The Wechselaval is regulated in Article 31 Exchange Act.
• Customs guarantee: The financial management may, in accordance with the provisions of the Tax Code (AO) claims on tax liabilities, duties and excise taxes on bail hours (§ § 221 to 223 AO). As a security service (§ 241 AO ) is also a guarantee of a suitable tax guarantor ( § 244 AO) can be allowed.

Guarantee commission

For their credit risk and the management contract underlying service, the bank receives in accordance with the loan agreement a calculated according to the amount and risk of the guarantee facility guarantee commission. Since this is not a money loan, the guarantee fee is not based on the current loan rates, but on the individual risk of liability of the bank. That is the reason why of Aval " provision" is mentioned, because commissions in connection with services to be calculated. In addition, at the level of the guarantee commission, the regulatory classification of the guarantee facility plays a role. Except for the Anzahlungsavale are due to the relatively low credit risk guarantee loans with only 50 % of own funds to inferior ( § 13 Section 1 No. 1 and § 50 Section 1 No. 5 and 6 Solvency Regulation in conjunction with § 19 Section 1 Sentence 3 No.. 3 and 4 of the Banking Act ).

Deposit insurance

In the context of insurance on behalf of others (§ § 43 ff SG ) carry insurance, the so-called deposit insurance. You take over the same Avalarten as credit institutions and therefore come towards them as competitors. The provisions of § § 43 et seq SG, however, are limited to the deposit insurance applicable because there is guarantee by the relationship between the creditor and the surety insurance an independent legal relationship. Insured risk in any case is the poor economies of the insured. According to § 2 para 2 of the Banking Act applies to insurance companies the provisions of § 14 KWG for millions of loans, so that deposit insurance of the Deutsche Bundesbank shall be quarterly report. In a circular dated 22 May 1996, the Federal Financial Supervisory Authority has approved for all German credit and surety insurance business insurance companies attention to the particular risks of deposit insurance and to that end to organizational requirements. According to § 210 VVG include the risks from deposit insurance to the major risks.

Economic Importance for borrowers

• Avoiding the use of cash, for example, by deferral or waiver of deposit.
• It falls only on a guarantee commission, which clearly is usually below market interest rates.
• The borrower does not need to provide any collateral in general. ( Guarantee loans forgiven banks generally reserved for customers with first class credit rating. )

Economic importance to the bank

Guarantees are regarded as contingent liabilities, so that liquid assets must be made available only if there is a claim under the contingent liability. Therefore, the counterparty risk of the Avalkreditnehmers is weighted lower and therefore allows a higher volume of credit as real money loans.

Termination

Guarantee loans are not repaid as a contingent liability, but booked out after completion of the Avalzwecks by returning the original document to the adherent of this bank. In the unconditional return of the original document is in accordance with the loan agreement, an implied act of the creditor or a third party guarantee that he will invoke the rights conferred the Bankaval no longer asserted.

Counter-guarantee

The counter-guarantee is a guarantee ( warranty promise ) in favor of the warranty plate and is one of the products of export credit guarantees from the government ( Hermes guarantees). With it, the federal government takes the guarantor essentially extent the risk of recourse from the exporter. For the counter-guarantee means that the federal government the guarantor reimburses the drawn amount of the guarantee to the amount of the guaranteed rate ( max. 80 %). Reimbursement will be made on first demand and in particular independent of the drawing surface. The counter-guarantee is therefore not a mere performance guarantee and the refund payment will be made in the case of fair calling. It leads to a direct discharge to the credit line of the exporter. In particular, small and medium-sized companies can thereby improve their liquidity.