Strange, I have guarantees worth 10,000 EUR lying around here. Despite VOB...
Congratulations.
However, one could also come to the conclusion that you have been fobbed off with worthless paper... which is not meant disrespectfully.
A guarantee ("BÜ") offers (with one exception in insolvency, see below) in my opinion merely an
illusory security.
In order:
1. An effective VOB/B agreement towards consumers is initially a topic of its own and for the Federal Court of Justice, which has already expressed itself sufficiently on this matter. Moreover, there are different limitation periods of 4 vs. 5 years, etc. This is a topic for search engines.
2. A guarantee is always possible if it has been agreed upon. According to the Building Code, it is freely negotiable, unless § 633 III Building Code already stipulates a "security" (= e.g. cash retention or guarantee) owed for single-family home construction by consumers; according to VOB/B via §§ 13, 17 VOB/B. Guarantees cost an aval commission, depending on creditworthiness 1-2%. You pay it hidden anyway, as it is included in the price. Of course, one can agree on a cash retention. However, the construction company has a choice (§ 633 III 3 Building Code) between guarantee or cash retention. So: a matter of negotiation.
3.
And even self-debtor and without prior enforcement requirement...
That is the standard case (and also stipulated in § 17 IV VOB/B). So nothing special.
For the value retention – unlike the value – the decisive factor is what the guarantee is not: A guarantee on first demand.
The guarantee on first demand is hardly contractually agreed in standard terms and conditions law or is invalid according to case law and § 17 IV sentence 2 VOB/B.
The guarantor thus has all defenses of the principal debtor – including disputing the defect.
Therefore, in the event of security (e.g. defect within the scope of warranty), the guarantor says:
"I will not pay as guarantor as long as I do not have
(i) an acknowledgment of the principal debtor or
(ii) a final judgment against the principal debtor regarding the claimed sum
available."
After all, the guarantor wants to claim recourse from the principal debtor in the internal relationship in case of security (§ 774 Building Code). And if the principal debtor (construction company) does not want to pay the customer on the first attempt, he will not enthusiastically do so if the bank seeks recourse from him on the second attempt later. The bank also wants to get its money back.
In short: Without a judgment, I will not get the money in case of dispute!
4. Insolvency: The claim will regularly be disputed by the insolvency administrator. See above under 3. So: Go to court, sue.
5. Only if I have a title, can I realize it against the guarantor in insolvency. THIS is in my opinion the only remaining VALUE-RETAINING
exceptional case, since instead of a deadbeat debtor I obtain an additional solvent guarantor. The number should be in the per mille range where this is ever successful. The bankers here can certainly say more about this. Without a title/judgment, there is not much else to achieve.
6. It is also less strange that guarantee claims and secured principal claims unfortunately have different limitation periods:
** Guarantee regularly after 3 years,
** Warranty claims after 4 or 5 years.
Consequently, after 3 years the defense of limitation arises on the part of the guarantor. Unless at the end of the guarantee the nice sentence reads:
"The guarantee claim does not expire before the secured principal claim."
However, this sentence is usually not there, since the template comes from the construction company’s house bank.
And no, this is not covered by "unlimited duration," since this applies to validity, but the nasty defense threatens enforceability from the exact opposite side.
So, have fun with your "strange" guarantees...
In my opinion, only the banks can enjoy these via the aval commission. Merchants say: "Only cash is real." That speaks for cash retention. If it is agreed upon.
So take a good look at your thick pile of guarantees again.