The stand-alone bank guarantee is a personal guarantee provided by a credit institution (usually a bank) which is intended to indemnify someone for a certain amount by verifying a particular event to which the parties have assigned relevance in a contract concluded between them (usually referred to as Base contract).
In the event of a bank guarantee at the first request, the guarantor is obliged to satisfy it immediately, simply by requiring the beneficiary to request it in the terms previously agreed upon.
It happens that, most of the time the bank guarantee also imports a personal guarantee from the managing partner of the company that issued it (guarantee), asking the question how can this act before the activation of a first demand guarantee, without Is due to the beneficiary.
This situation occurs in particular in the construction sector, where occasional bank guarantees are issued, as a guarantee for the compliance of the works with the projects.
In an autonomous bank guarantee, the guarantor may not invoke, in principle, any means of defense arising from legal relationships other than that assumed by him with the beneficiary.
In other words, the autonomy of these guarantees means that the guarantor does not impose exceptions on the beneficiary, with the exception of the means of defense that are specific to the guarantor in relation to the beneficiary.
See, in this regard, the summary made by the recent Judgment of the Portuguese Supreme Court of May 19, 2014, stating that autonomy withdraws that exceptions related to the guaranteed contract can not be opposed to the beneficiary by the guarantor, but only with The guarantee business, materializing in the fact that the guarantor does not have the possibility to invoke the previous excussion of the guaranteed assets or the invalidity or impossibility of the obligation by the contracted party.
In order to counteract this situation, the Lisbon Court of Appeal explains in its judgment of 16/06/2011 that “the applicant’s recourse to a means of early or conservative protection of her right, The first, refrain from triggering the bank guarantee provided and, secondly, not to pay any amount under that guarantee, subject to proof of verification of his right invoked, as well as serious injury and Difficult to remedy, and there is no particular precautionary measure that is particularly appropriate and this situation. ”
In these cases, when the bank guarantee is triggered by the beneficiary, it is admitted, the introduction by the client of precautionary, urgent and provisional measures, in court, to prevent the guarantor from delivering the monetary amount to the beneficiary or the beneficiary to receive.
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