A lessor sought to exercise an autonomous bank guarantee given to it by the tenant due to a debt arising from the lease agreement. The trustee of the tenant, who is in insolvency proceedings, sought to postpone the realization until the lessor's claims were investigated.
The Court accepted the motion of the lessor due to the principle of independence and the non-application of the exceptions to it. An autonomous bank guarantee is not an asset of the debtor, hence insolvency proceedings in general, and an order for a stay of proceedings in particular, are not meant to prevent its realization, as the realization proceeding is not a proceeding against the debtor, but rather against the guarantor bank. Moreover, an autonomous bank guarantee constitutes an independent obligation that can be exercised by the beneficiary, regardless of the base transaction by virtue of which it was made. The purpose of this principle, called the "principle of independence", is to free the beneficiary from the need to conduct legal proceedings in connection with the base transaction and thus to enable the rapid and efficient realization of the funds of the autonomous guarantee. There are two exceptions to this rule, the applicability of which is contingent on the fact that there is no dispute as to the absence of debt by virtue of the basic transaction. Here, according to the lessor, the realization of the guarantee was required due to debts arising from the base transaction and the trustee did not prove otherwise. Therefore, the lessor is entitled to exercise the autonomous guarantee and the trustee has the right to demand the return of the funds to the liquidation fund.