SUPREME COURT: NOTIFICATION OF A GUARANTOR SENT TO THE ADDRESS SPECIFIED IN THE AGREEMENT IS PROPER

When considering a dispute about the possibility of including a beneficiary's claim based on a bank guarantee agreement in the register of creditors' claims, the courts of three instances agreed to reject it. The reason for such a decision was the missed deadline for filing a claim for payment of the guarantee, sent to the wrong address.

However, the higher court did not support the colleagues and saw the legitimacy in the actions of the beneficiary, indicating the following. The bank guarantee agreement concluded between the parties contained the address of the guarantor, to which the claim for payment of the guarantee was to be sent within the period specified in the agreement.

To fulfill the terms of the agreement, the beneficiary sent a claim to the specified address, having no idea that at that moment the guarantor had already been declared bankrupt and his address had been changed.

After that, the creditor turned to the bank manager with a request to include his claim in the register of creditors' claims, but was refused due to missing the deadline for filing a claim for payment of the guarantee. The manager did not consider the demand sent on time, but to the old address, as duly fulfilled.

The courts upheld this position, indicating that the deadline for filing a claim was missed, and therefore there are no grounds for inclusion in the register of creditors' claims.

However, the economic board indicated that the proper execution of the contract in this case is the direction of the claim for payment of the guarantee to the address specified in the agreement. As for the inclusion in the register of creditors' claims, the claim for it was correctly sent by the creditor to the address of the manager.

Now the court of the first instance will have to re-consider the application, taking into account the position of the Supreme Court (determination No. 302-ES19-16365 (3) of December 1, 2020).