ماهيت حقوقي ضمانت نامه بانكي بين المللي و مقايسه آن با نهادهاي سنتي

Legal Nature of International Bank Guarantees and Comparisons with Traditional Concepts

The independent guarantee and suretyship (accessory guarantee) share a significant characteristic in that they both provide security to the beneficiary in respect of non-performance by account party in the underlying transaction. The difference is that the payment obligation of guarantor is by definition independent of that of account party/principal debtor, whereas the payment obligation of surety is co-extensive. In accordance with the principle of co-extensiveness, the surety is entitled to invoke the defenses which the principal debtor might have as against the beneficiary, whereas pursuant to the principle of independence, the guarantor cannot invoke defenses derived from the underlying transaction. Therefore, in the light of the principle of independence, bank guarantee is distinguished from accessory sureties and must be regarded as an unspecified contract between bank and beneficiary. The principal is not a party to this contract even if the independence guarantee is a product of the underlying contract between him and the beneficiary.In Iranian law, this contract is based on Article 10 of the Civil Code