Bail, what is that and how do you arrange it?
What is a bail?
In the case of a bail, the guarantor pledges against the creditor of another to fulfill the obligations of this other (the actual debtor) when it does not do so himself.
Guarantees are given for obligations (‘commitments’) of another party against its creditor. The deposit is therefore a third.
Existing and future commitments
Guarantee can be for both existing commitments and for future commitments. The latter must meet certain conditions. The future commitment must result from a commitment that is sufficiently determinable at the time of the guarantee.
Debt and other liabilities
Guarantee can primarily be for commitments in which the debtor has to pay a sum of money. However, suretyship is also possible for other commitments. For instance, the latter can be thought of as an obligation to deliver a particular case.
What can a surety be charged for when the debtor had to do something different than paying a sum of money? Schadevergoeding. It is about the damage caused by the debtor having failed to fulfill his obligations. However, parties may make different arrangements at this point.
Business and private guarantees
There are two types of guarantees:
1. Private: guarantee by a natural person who has not entered into:
– in the exercise of his profession or business; of
– the normal operation of the nv / bv of which he is a director and holds the majority of the shares alone or together with co-managers.
2. business: all other guarantees
For the private offense, more stringent rules apply than for the business guarantee.
When can a bail be invoked?
The guarantor can only be called upon if the debtor fails to fulfill his obligations. If a notice of default is given to the debtor, the debtor is obliged to notify the guarantor of this.
Can the guarantor plead against an appeal against the guarantee?
In the first place, of course, a guarantor can always dispute the validity of the guarantee or an appeal thereon. Various grounds can be provided for this, including: a technical defect, violation of a duty of care (for example, a bank) or that there was abuse of circumstances when entering into the guarantee.
Secondly, any spouse / spouse or registered partner of the guarantor must sign the guarantee under certain circumstances. If this has not happened, this spouse / spouse or partner can destroy the guarantee.
Third, a guarantor can claim the same defenses as the debtor can appeal (for example, that the creditor himself has been shot short).
Fourthly, a guarantor can no longer be forced to fulfill its obligations when the creditor’s claim against the debtor is barred.
What happens after the deposit has paid?
If the deposit has paid according to the guarantee, the guarantor can recover the debtor from the debtor.
Main trap deposit
The most important pitfall for a deposit is that it relies too much on the debtor to fulfill his obligations. Experience has shown that prospective sponsors are often too optimistic about the risk that they will be charged for payment.
Main pitfalls of creditor
The main pitfalls for a creditor are the following:
– the guarantee is not fixed (and therefore difficult / not demonstrable);
– the guarantee is not well-designed, for example because it has been wrongly assumed that there is a business guarantee while it is a private bail;
– the guarantee is destroyed by a spouse / wife or a registered partner of the guarantor, who has not granted permission for the guarantee.
Do you have questions about (the validity of) a bail, you need to give a bail, or are you called as a security deposit? Please contact me without obligation. Good advice is important for ensuring your position.