in everyday life.
It's not uncommon for friends and family to borrow money from each other.
To ensure the repayment of the loan.
Often, it still happens.
Ask the guarantor for help.
Sign the IOU as a "witness".
But if the borrower does not repay the loan later.
Is the guarantor jointly and severally obligated to repay?
Let's take a look at the private lending dispute case heard by Judge Gao Shengjun of the Xie Ji Court of the Juye Court.
Basic facts of the case
In August 2022, the defendant Liu borrowed RMB 20,000 in cash from the plaintiff due to business funds, and at the same time issued a written IOU, and promised to repay it before August 31, 2022, with a monthly interest of 0015%。Defendants Wang and Li, as the "guarantors", signed and confirmed, and agreed that "the guarantor of this IOU is willing to bear the borrower's debts within the borrower's failure to repay the loan as agreed", and the two guarantors and the borrower Liu are related.
Later, after the plaintiff's urging, the defendant Liu failed to perform the repayment obligation on time according to the agreement, and the plaintiff sued the court, demanding that the guarantor Wang, Li and the borrower Liu jointly perform the repayment obligation.
Heard by the courts
The court held that legal private lending was protected by law, and that the plaintiff Zhao and the defendant Liu reached an agreement on borrowing, and the plaintiff Zhao provided the loan in accordance with the contract, and a legal and effective legal relationship of private lending was formed between the two parties, and both parties should perform their respective rights and obligations in accordance with the agreement.
In this case, after the plaintiff provided the loan according to the contract, the defendant did not repay the loan on time according to the contract, which constituted a breach of contract and should bear the liability for breach of contract in accordance with the law, so the plaintiff Zhao requested the defendant Liu to perform the repayment obligation, and the court supported it in accordance with the law.
How should the agreed interest be calculated?
The plaintiff's request for interest on the money belongs to the scope of liability for breach of contract, and the plaintiff's request for the defendant to bear the interest on the loan from the date of default is based on the law, and the court supports it, and the parties have a clear agreement on this, that is, the monthly interest rate is 0015%, this agreement does not violate the relevant laws and regulations, is legal and valid, and the court recognizes it.
Is the guarantor liable for repayment?
The parties expressly agreed that the premise of the guarantor's guarantee liability was that "the borrower failed to repay the loan as agreed", and accordingly, the court held that the guarantor's way of assuming the guarantee liability should be a general guarantee, and since the parties did not agree on the guarantee period, the court determined in accordance with the law that the guarantee period was six months from the date of expiration of the performance period of the main debt, and the plaintiff, as the creditor, did not file a lawsuit or apply for arbitration against the debtor during the above-mentioned guarantee period, and the defendants Wang and Li, as guarantors, no longer bear the guarantee liability. Therefore, the plaintiff sued the defendants Wang and Li to bear corresponding responsibility for the loans involved in the case, but the court did not support it in accordance with law.
Court decision
The defendant Liu repaid the plaintiff Zhao for the loan of 20,000 yuan and paid the overdue interest.
Links to legal provisions
Article 687 of the Civil Code of the People's Republic of China: Where the parties agree in the guarantee contract that when the debtor is unable to perform the debt, the guarantor shall bear the guarantee liability, it is a general guarantee.
Article 692 of the Civil Code of the People's Republic of China The guarantee period is the period during which the guarantor's guarantee liability is determined, and there is no suspension, interruption or extension.
The creditor and the guarantor may agree on a guarantee period, but if the agreed guarantee period is earlier than or expires at the same time as the performance period of the principal debt, it shall be deemed that there is no agreement; If there is no agreement or the agreement is not clear, the guarantee period shall be six months from the date of expiration of the performance period of the principal debt.
Where the creditor and the debtor have not agreed on the time limit for the performance of the principal debt or the agreement is not clear, the guarantee period shall be calculated from the date of expiration of the grace period for the creditor to request the debtor to perform the debt.
Article 693 of the Civil Code of the People's Republic of China Where the creditor of a general guarantee fails to file a lawsuit or apply for arbitration against the debtor during the guarantee period, the guarantor shall no longer bear the guarantee liability.
What the judge said
In private lending, in order to better protect the legitimate rights and interests of the lender, the law gives the lender the right to claim the guarantee liability from the guarantor, but at the same time, it also requires the right holder to exercise its personal rights in a timely manner, and the law will not forever protect the person lying in the right book. Therefore, even if the written IOU is confirmed by the guarantor's signature, it cannot be done once and for all, and as a right holder, it is necessary to exercise individual rights correctly and in a timely manner.
Text: Ji Rengang ** on the Internet.