What happens if the beneficiary of a bank guarantee or other guarantee opts to run it against the non-payment of the debtor that has been declared in competition? He is this a fundamental issue not only for the beneficiary of the guarantee, but also for grantor of the same – in many cases, a financial institution.Neither should ignore the possible consequences that his debtor and endorsed, respectively, be declared in bankruptcy. For greater clarity of Exposition, throughout this article we’ll call to the guarantor or guarantor as the guarantor. For its part, will call the debtor in competition the guaranteed debtor. And the beneficiary of the guarantee, the lender with collateral. 1.
The general rule of article 87.6 of the bankruptcy law (LC) Act provision that credits in which creditor enjoyment of third party bail will be recognized by its amount without limitation and without prejudice to the replacement of the holder of the credit in the event of payment by the guarantor. This means that after the Declaration of insolvency, the guarantor will remain as a subject forced against the creditor with endorsement, benefited by the time remaining until the enforceability of its obligation. Yes, constant competition, such period elapses and the creditor with endorsement requires the guarantor the fulfilment of the obligation of warranty, this – the guarantor – will become, by the fact of the payment, owner of the credit against the guaranteed debtor, for whose demand may subrogate the place of the primitive creditor. The Royal Decree-Law 2/2009, on March 27, has added to the aforementioned article 87.6 the following mention: will always occur the subrogation by payment, in the qualification of these credits are opt resulting less burdensome for the contest between those corresponding to the creditor or to the guarantor. Suppose that, as a counter-guarantee of the guarantee, the guarantor was garment public document on certain assets of the guaranteed debtor (special privilege according to article 90 of the LC).