Germany Update: Recovery of a guarantee: Does it have to be collected from the guarantor?

Problem

A client had provided the contractor with a bank guarantee as security for remuneration claims. The certificate of guarantee was held by the contractor. After all remuneration claims had been fulfilled, the client demanded several times from the contractor the surrender/return of the guarantee certificate. After a surrender by the client did not take place, the client sued for the release of the guarantee certificate. The contractor then acknowledged the claim in court, so that the parties only argued about the assumption of costs in the process.

Decision

According to the decision of the Higher Regional Court of Frankfurt (decision of 30.05.2022 – Az. 22 W 22/22), the client bears the costs of the legal dispute. Because he would have lost the legal dispute if it had been carried out. In the opinion of the court, the contractor did not give rise to any action. This would only have been the case if he had been in arrears with the issue of the guarantee. However, that was not the case: the contractor was not obliged to send the guarantee certificate to the client. The provision for collection would have been sufficient. Because: The contractor’s obligation to hand over the guarantee certificate is a so-called collection debt. Both the place of performance (place of performance) and the place of performance success (place of success) are located at the place of business of the contractor. Without an agreement to the contrary, it is not a so-called Schickschuld. Similarly, for example, the OLG Celle had decided for a warranty guarantee (OLG Celle, judgment of 03.09.2009 – 13 U 37/09).

Practical significance

In the event of recovery of a guarantee, the guarantor (owner of the deed) should be offered to collect the guarantee from him.

Furthermore, the question arises whether the decision of the Higher Regional Court of Frankfurt does not also apply to builders’ securities under § 650f (formerly § 648a) BGB. According to case law, the deadline to be set by the contractor for the provision of a guarantee to the client there is very short. A reasonable period of time, which is likely to be reasonable, is 14 calendar days. Only if there are public holidays during this period, for example, which fall on working days (Monday to Friday), it can be assumed that a longer period must be granted. Taking into account the processing time at the bank, clients sometimes have problems transmitting the guarantee to the contractor in good time. In view of this, it would be very advantageous for the contracting authority if it were sufficient if it were sufficient if it could enable the contractor to collect the guarantee certificate within the time limit set by the contractor. Unfortunately, however, there is no established case law on this so far, so that it remains the safest way if the client transmits the guarantee certificate to the contractor in the original during the set deadline (if necessary by courier).

By MELCHERS, Germany, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact germany@transatlanticlaw.com

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