A garantia autônoma

• Autor(a) principal: Azevedo, Carolina dos Pilares da Mota
• Data de Publicação: 2019
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://tede2.pucsp.br/handle/handle/22842
• topic: Garantia autônoma; Garantia à primeira demanda; Garantia bancária; Independent guarantee; Firstdemand guarantee; Bank guarantee; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

After the end of the second world war the countries sought to impulse the economy and the international transactions intensified. The deals demanded secure and liquid guarantees, considering the lack of knowledge between the business partners and the particularities of each country (legal, politic, economic). In this scenario arose in the commercial practice the figure of the independent guarantee, a category that establishes an untying between the guarantee and the base agreement. It is atypical and we can count only on the rules established by CCI, as well as doctrine, precedents and practice for the best understanding of the modality. The structure of the independent guarantee is composed by the originator, which is the debtor who instructs the bank to issue the guarantee, the guarantor bank which issues the guarantee and the beneficiary, which is the creditor who receives the guarantee (triangular structure). It may have also a second bank, counterguarantor of the issuing bank, in which case is formed a quadragular structure. It is very common that the independent guarantee possesses a first demand payment clause ― payment made immediately by the mere demand by the beneficiary ― what grants the guarantee not only independence, but also automaticity. There are, however, somes restrict hypothesis in which the bank may refuse the payment, as fraud or abuse of right. The automatic payment of the guarantee may generate an insecurity to the originator. As the simple demand is enough to the bank proceed with the payment it is inevitable the risk of as unfair call of the guarantee. Thus, it is important to addopt mitigating measures. Notwithstanding, in case the situation mentioned occurs, the originator can find support in the brazillian law, which prevents the abuse of right, as the acting contrary to the good faith. Therefore, once the illicit act is verified, the originator may rely on civil liabolity to pursue its reimbursement. In light of the importancy that the independent guarantee reached in the international scenario, being addopted in relevant projects, the deepening of its study is important, particularly in the brazillian legal field which offers few material in this respect, in order to allow the national businessman to have more security to participate in operations involving this kind of guarantee