THE SUPREME COURT OF RUSSIA CLARIFIED THE CRITERIA OF BAD FAITH OF GUARANTEE GIVER IN BANKRUPTCY

The Judicial Board for Economic Disputes of the Supreme Court of the Russian Federation considered the case on the bank's application for the inclusion of its claim in the register of the creditors’ claims. Financial claims against the debtor were based on a bank guarantee agreement, under which the applicant paid the amount established by the agreement instead of the debtor.

The lower courts satisfied the claim, but downgraded its priority due to the creditor's compulsory performance of his obligations. The judges referred to the fact of the guarantor's bad faith, but the Supreme Court did not support this position.

The highest court stated that the bad faith announced by the colleagues did not apply to legal relations within the framework of the bankruptcy case in any way, since it was directed at a third party - the beneficiary.

He had to resort to the compulsory execution of the agreement, but this situation did not affect the debtor in any way, as the guarantee was fulfilled. Thus, the compulsory execution of an agreement on a bank guarantee in this case cannot be a reason for downgrading the claims of the guarantor to the principal.

At the same time, the Supreme Court also clarified the moment of debt qualification. The fact is that the bank's recourse claim arose after the initiation of a case on the insolvency of the debtor (principal), which could have served as a reason for the classification of such a debt as a current payment.

However, the bank guarantee agreement itself was concluded before the initiation of the bankruptcy case - in such a situation, the debt under the agreement becomes on a par with others and is included in the register on an equal basis with them (decision in case No. 305-ES18-293 (5) dated May 11, 2021).