Topic 15

15.1. Loan agreement

In accordance with paragraph 1 of Art. 807 of the Civil Code, under a loan agreement, one party (the lender) transfers money or other things defined by generic characteristics to the ownership of the other party (the borrower), and the borrower undertakes to return to the lender the same amount of money or an equal amount of other things received by him of the same kind and quality.

The loan agreement is a real and one-sided transaction. As a rule, this is a paid contract, but it can also be free of charge.

The loan agreement is considered concluded from the moment the money or other things are transferred (paragraph 2, clause 1, article 807 of the Civil Code), and therefore the promise to provide a loan (unlike a loan agreement) has no legal significance.

Any subjects of civil law can be parties to a loan agreement, and only owners of money or other things can act as lenders without restrictions. Institutions - state bodies and local self-government bodies (except for cases of disposing of income from activities permitted by their owner) and others cannot be lenders, state-owned enterprises can act in this role only with the consent of the founder-owner, and other unitary enterprises - in the absence of legislative prohibitions and restrictions.

Budgetary institutions cannot be borrowers (unless this is due to their incomplete financing or delayed financing), and unitary enterprises are required to register their borrowings with the appropriate financial authority. As borrowers, they acquire on the property transferred to them by lenders not the right of ownership, but a limited right in rem, on which they have property.

The subject of a loan can only be money and other things defined by generic characteristics, which distinguishes it from leases and loans. Rights of claim, as well as things limited in circulation, cannot act as the subject of a loan, if the parties to the agreement do not have permission to make transactions with such things.

The loan is supposed to be reimbursable, unless its gratuitous nature is directly established by law or a specific agreement. In the absence of instructions on the amount of interest in the loan agreement, they are determined by the bank interest rate (refinancing rate) that exists at the location or residence of the lender on the day the borrower pays the amount of the debt or its corresponding part (clause 1, article 809 of the Civil Code).

A gratuitous loan agreement is assumed by virtue of law, unless otherwise expressly provided in the agreement, in cases where:

▪ an agreement is concluded between citizens for an amount not exceeding 50 times the minimum wage, and is not related to the entrepreneurial activity of at least one of the parties;

▪ under the agreement, the borrower is not given money, but other things determined by generic characteristics (clause 3 of Article 809 of the Civil Code).

The loan agreement is subject to conclusion in a simple written form, subject to the following conditions:

▪ if it is concluded between citizens and its amount exceeds at least 10 times the minimum wage established by law;

▪ if the lender is a legal entity, regardless of the amount of the agreement (clause 1 of Article 808 of the Civil Code).

In confirmation of the loan agreement and its terms, a borrower's receipt or other document may be provided certifying the transfer of a certain amount of money or a certain number of things by the lender to him (clause 2 of article 808 of the Civil Code).

In other cases, the loan agreement may be concluded orally.

Failure to comply with a simple written form does not entail the invalidity of the loan agreement. In the presence of such a violation, the parties are only prohibited from referring to testimonies in support of the conclusion of the loan agreement and its terms.

The borrower is obliged to return to the lender the amount received on time and in the manner prescribed by the agreement.

In the absence of special instructions in the agreement on the repayment period or its determination as the moment of demand, the loan amount must be returned within 30 days from the date the lender makes a request for this, unless otherwise provided by the agreement (paragraph 1 of article 810 of the Civil Code).

The law allows early repayment of only the amount of an interest-free loan, and a loan granted at interest can be repaid ahead of schedule only with the consent of the lender (clause 2 of article 810 of the Civil Code), since the latter is deprived in this case of part of his income.

Interest under the loan agreement can be paid in any order agreed by the parties, including by way of a single payment. However, unless otherwise agreed, they are paid monthly until the day the loan amount is returned (clause 2 of article 809 of the Civil Code), but not until the date of its return specified by the agreement.

The Civil Code does not provide for the accrual of interest on interest ("compound interest") in case of delay in paying a loan. In this case, in accordance with paragraph 1 of Art. 811 of the Civil Code, interest is additionally collected for the delay in the fulfillment of a monetary obligation (clause 1 of article 395 of the Civil Code), which are charged on the unreturned loan amount. Accrual of interest on unpaid interest for the period of delay is allowed only when such a sanction is provided for by law or contract.

If the loan agreement provides for the return of the loan in installments (in installments), then if the borrower violates the deadline set for the return of the next part of the loan, the lender has the right to demand early repayment of the entire remaining loan amount, together with the interest due (clause 2, article 811 of the Civil Code). From this moment, it is also possible to charge additional interest on the remaining amount in accordance with the rules of Art. 395 GK.

All of the above applies only to the execution of a money loan agreement, since the loan of things does not give rise to monetary obligations and is assumed to be free of charge, and when the parties establish its reimbursable nature, they themselves determine the amount of remuneration to the lender and the consequences of delaying the repayment of the loan. An exception is the situation when, under a compensated loan agreement for things, the remuneration to the lender is set in cash and, therefore, a monetary obligation arises for its payment by the borrower.

The borrower has the right to challenge the loan agreement for lack of money, proving that the money or other things were not actually received by him from the lender or received in a smaller amount than specified in the agreement. If the contract required a simple written form, then it is not allowed to challenge it for lack of money by means of witness testimony, except in cases where the contract was concluded under the influence of deceit, violence, threats and similar circumstances provided for in Art. 179 GK.

The lender, as a creditor, is obliged to issue a receipt to the borrower for receiving the subject of the loan, or to return the corresponding debt document (for example, the borrower's receipt), and if it is impossible to return, indicate this in the receipt issued by him. The creditor's receipt may be replaced by his inscription on the returned debt document. If the lender refuses to perform these obligations, the borrower has the right to delay the performance. At the same time, the lender is considered overdue (clause 2 of article 408 of the Civil Code), which excludes the payment by the borrower of any interest from that moment on (clause 3 of article 406 of the Civil Code).

Loan relations, by agreement of the parties, can be formalized by issuing a bill (from German wechseln - change, exchange), which is a type of security (Article 143 of the Civil Code). The bill contains an unconditional obligation of the drawer (promissory note) or another payer specified in the bill (bill of exchange) to pay the amount of money received on loan upon the expiration of the period stipulated by the bill (part 1 of article 815 of the Civil Code).

The rules on the loan agreement apply to the relations that have arisen as a result of the issuance of a bill of exchange only in so far as they do not contradict bill of exchange legislation (part 2 of article 815 of the Civil Code). At present, the Federal Law of March 11.03.1997, 48 No. 07.08.1937-FZ "On a transferable and promissory note" and the Regulation on a transferable and promissory note approved by the Decree of the Central Executive Committee and the Council of People's Commissars of the USSR of August 104, 1341 No. XNUMX/XNUMX are in force.

In case of refusal to pay a bill, certified by a notary (the act of certifying such a refusal is called), at the request of the bill creditor, the judge issues a court order that has the force of a writ of execution.

The drawer himself acts as a debtor under a promissory note. In a bill of exchange, along with the drawer, the payer is indicated, with the consent of which the drawer is jointly and severally liable to the holder of the bill for the production of payment on the bill. However, if the payer named on the bill of exchange does not consent to the payment or does not make the payment, the drawer shall be liable to the holder of the bill.

Most promissory notes are order securities, i.e. can be transferred by the holder of a bill to another person, and such a transfer of a bill can be carried out more than once. As a general rule, all endorsers (i.e., persons who have made an endorsement on a bill of exchange) in relation to the bill holder bear joint and several liability with the drawer.

Payment under a bill of exchange may be secured by a special guarantee - aval. The aval is given only for one of the persons liable under the bill, with whom the avalist bears joint and several liability to the holder of the bill.

In cases expressly provided for by law or other legal acts, a loan agreement may also be formalized by the issuance and sale of bonds (from Latin obligatio - obligation). A bond is recognized as a security that certifies the right of its holder to receive from the person who issued the bond, within the period stipulated by it, the nominal value of the bond or other property equivalent, as well as the percentage fixed in it of its nominal value or other property rights (part 2 of article 816 GK). When acquiring bonds, loan relations arise in which the issuer of bonds acts as a borrower, and bondholders (bondholders) act as lenders.

Unlike promissory notes, bonds are emissive securities and therefore, in accordance with the legislation on the securities market, they can be issued both in paper and paperless form. Bonds can be both bearer and registered.

The norms of the Civil Code on a loan agreement apply to relations between the person who issued the bond and its holder insofar as otherwise is not provided by law or in the manner prescribed by it (part 2 of article 816 of the Civil Code). Relations associated with the issue and sale of bonds are primarily regulated by Federal Law No. 22.04.1996-FZ of April 39, XNUMX "On the Securities Market" and other special laws.

Currently, the right to issue bonds is expressly granted only to business companies, although the law does not exclude the issue of bonds by production cooperatives and unitary enterprises, as well as limited partnerships.

The right to issue bonds is also held by public legal entities - the Russian Federation, its constituent entities and municipalities. These subjects of civil law most often resort to the issue of bonds, including those distributed among all citizens. The Civil Code establishes two basic principles of state loans: the voluntariness of the acquisition of bonds and the prohibition to change the terms of a loan issued into circulation (paragraphs 2, 4 of article 817 of the Civil Code). The same rules apply to municipal loans (clause 5, article 817 of the Civil Code).

The issue and sale of bonds by public legal entities are regulated by Federal Law No. 29.07.1998-FZ of July 136, 31.07.1998 "On the Features of the Issue and Circulation of State and Municipal Securities" and the relevant norms of the Budget Code of the Russian Federation of July 145, XNUMX No. XNUMX-FZ.

The maturity of bonds issued by the state cannot exceed 30 years from the date of their issue, and municipal bonds - 10 years.

The varieties of the loan agreement include the target loan agreement (Article 814 of the Civil Code). An example of such agreements are loan agreements concluded by citizens for the purchase of certain property (housing, land, summer cottages, cars, etc.).

The current legislation also provides for the possibility of debt novation, i.e. replacement of debt arising from the sale, lease of property or other grounds, with a loan obligation (Article 818 of the Civil Code).

15.2. Loan agreement

Along with a loan, as an independent type of provision of funds by one person to another with the condition of their return, the current civil legislation allocates a loan (§ 2 Chapter 42 of the Civil Code).

In accordance with paragraph 1 of Art. 819 of the Civil Code, under a loan agreement, the lender (bank or other credit organization) undertakes to provide funds (credit) to the borrower in the amount and on the terms stipulated by the agreement, and the borrower undertakes to return the amount of money received and pay interest on it.

The rules on a loan agreement apply to relations under a loan agreement, unless otherwise provided by the rules of § 2 Ch. 42 of the Civil Code and does not follow from the essence of the loan agreement (paragraph 2 of article 819 of the Civil Code).

By its legal nature, the loan agreement is consensual, reimbursable and bilateral. Unlike a loan agreement, it enters into force already at the moment the parties reach an appropriate agreement before the actual transfer of money to the borrower. This makes it possible to force the lender to issue a loan, which is excluded in loan relations. A loan agreement also differs from a loan agreement in terms of its subject composition. Only a bank or other credit organization licensed by the Central Bank of the Russian Federation to perform such operations can act as a creditor here.

The subject of a loan agreement can only be money, not things. Moreover, the issuance of most loans is carried out in non-cash form. That is why the law speaks of the provision under this agreement not of money, but of funds (paragraph 1 of article 819 of the Civil Code).

According to Art. 820 of the Civil Code, a loan agreement must be concluded in writing under pain of its nullity.

The loan agreement is always reimbursable. The remuneration to the lender is determined in the form of interest accrued on the amount of the loan for the entire time of its actual use. The amount of such interest is established by the agreement, and in the absence of special instructions in it, according to the rules adopted for loan agreements (clause 1 of article 809 of the Civil Code), i.e. based on the refinancing rate.

The obligation of the creditor in this agreement is to provide the borrower with funds in accordance with the terms of the agreement (once or in installments).

The borrower's obligations are to repay the received loan and pay interest for its use stipulated by the agreement or law. The performance of this obligation is regulated by the rules on the performance of their obligations by the borrower under the loan agreement.

A feature of the loan agreement is the possibility of unilateral refusal to execute it on the part of both the lender and the borrower (clause 1,2 of article 821 of the Civil Code). The lender has the right to refuse to provide the borrower with the loan stipulated by the agreement in whole or in part if there are circumstances that clearly indicate that the amount provided to the borrower will not be returned on time. The borrower has the right to refuse to receive a loan in whole or in part, notifying the creditor of this before the term for its provision established by the agreement, unless otherwise provided by law, other legal acts or the agreement. The lender also has the right to refuse further lending to the borrower under the agreement in case of violation of the obligation stipulated by the agreement for the intended use of the loan (clause 3 of article 821 of the Civil Code).

The parties may conclude an agreement providing for the obligation of one party to provide the other party with things defined by generic characteristics (commodity credit agreement). To such an agreement, the rules on a loan agreement apply, unless otherwise provided by the above agreement and does not follow from the essence of the obligation. The conditions relating to the items provided, their containers and packaging must be fulfilled in accordance with the rules on the contract for the sale of goods (Article 465 - 485 of the Civil Code), unless otherwise provided by the commodity loan agreement (Article 822 of the Civil Code). Unlike a conventional loan agreement, the parties to an agreement on the provision of a commodity loan, including creditors, can be any subjects of civil law.

The provision of a commercial loan is not the subject of a separate agreement, but may, unless otherwise provided by law, be one of the conditions of agreements, the execution of which is associated with the transfer of money or other things defined by generic characteristics to the ownership of the other party. A commercial loan is provided, in particular, in the form of an advance payment, prepayment, deferral and installment payment for goods, works or services (clause 1 of article 823 of the Civil Code), the condition of which may be included in contracts of sale, lease, contract, etc. d. The participants in the relations arising in this case (including creditors) can be both legal entities and citizens who are parties to the relevant civil law contracts.

The rules on loans and credits apply to a commercial loan, unless otherwise provided by the rules on the contract from which the corresponding obligation arose, and does not contradict the essence of such an obligation (clause 2 of article 823 of the Civil Code).

15.3. Financing agreement against the assignment of a monetary claim

In accordance with paragraph 1 of Art. 824 of the Civil Code, under a financing agreement against the assignment of a monetary claim, one party (financial agent) transfers or undertakes to transfer funds to the other party (client) against the monetary claim of the client (creditor) to a third party (debtor) arising from the provision of goods by the client, the performance of work by him or provision of services to a third party, and the client assigns or undertakes to assign this monetary claim to the financial agent.

A monetary claim against a debtor may be assigned by a client to a financial agent also in order to ensure the fulfillment of the client's obligation to the financial agent (paragraph 2, clause 1, article 824 of the Civil Code).

This agreement is new to our civil law. From its definition it follows that it combines the features of an agreement on the assignment of a claim (assignment agreement) and a loan or credit agreement. In addition, the peculiarity of the agreement in question is that it may include conditions for the financial agent to maintain accounting for the client, as well as providing the client with other financial services related to monetary claims that are the subject of assignment (clause 2 of article 824 of the Civil Code ). A financing agreement against the assignment of a monetary claim is used in the practice of a developed market turnover called a factoring agreement, in which a financial agent - a factor - acts as a party.

By its legal nature, the factoring agreement is paid and bilateral. This agreement can be both real and consensual, both in terms of the transfer of money by the financial agent to the client, and in terms of the assignment of the latter's monetary claim to the financial agent. The factoring agreement must be made in the form established by law for the assignment of a claim (Article 389 of the Civil Code).

Factoring agreements are used exclusively in business activities, so only commercial organizations or individual entrepreneurs can become participants in them. Banks and other credit institutions, as well as other commercial organizations, can act as financial agents, and the latter if they have a permit (license) to carry out activities of this type (Article 825 of the Civil Code).

The obligations of the client in the contract under consideration are the assignment of a monetary claim to the financial agent and payment for his services. According to Art. 827 of the Civil Code, the client is responsible to the financial agent for the validity of the claim that is the subject of the assignment. At the same time, as a general rule, he is not responsible for its execution by the debtor on this demand. Thus, factoring is assumed to be non-recourse, but the contract may also provide for the client's liability to the financial agent for the real feasibility of the assigned claim (clause 3 of article 827 of the Civil Code). The subject of the assignment for which financing is provided can be both a monetary claim, the payment term for which has already come (the existing claim), and the right to receive funds that will arise in the future (future claim) (clause 1 of article 826 of the Civil Code) .

The client also bears the obligation to pay for the services of a financial agent, the amount of which is determined as a percentage of the value of the assigned claim, in a fixed amount of money, etc.

The duty of the financial agent is to finance the client as payment for the assigned claim. Such financing can be carried out in the form of a transfer of monetary amounts to the client in exchange for an assignment that has taken place (at a time or in separate installments) or in the form of opening a loan secured by a possible future assignment of the right to claim. Under the terms of a particular contract, the obligation of the financial agent may also be to provide the client with the agreed additional financial services.

When settling with the debtor, the financial agent acquires the right to all the amounts that he manages to receive from the debtor in fulfillment of the claims assigned to him. Their size may exceed the amount of the loan issued by the client, and may be less than this amount, and in case of non-recourse factoring, the client is not responsible for this to the financial agent.

The obligation of the debtor to make a payment not to his creditor (client), but to his financial agent arises only on the condition of a written notification of the assignment of the claim that has taken place. In addition, at the request of the debtor, the financial agent is obliged within a reasonable time to provide him with proof of the assignment. If these conditions are not met, the debtor has the right to make a payment to the client, i.e. to the original creditor (Article 832 of the Civil Code).

As a general rule, the assignment of a monetary claim, i.e. its resale by a financial agent is not allowed. In the case when its possibility is provided for by the contract, the subsequent assignment of the claim must be carried out in compliance with all the rules governing factoring relations.

Author: Ivakin V.N.

<< Back: Insurance obligations (Concept and individual types of insurance. Participants in the insurance obligation. Insurance contract)

>> Forward: Bank account and bank deposit agreements (Bank account agreement. Bank deposit agreement)

We recommend interesting articles Section Lecture notes, cheat sheets:

▪ Microeconomics. Lecture notes

▪ Russian language and culture of speech. Crib

▪ Ecology. Crib

See other articles Section Lecture notes, cheat sheets.

Read and write useful comments on this article.

<< Back

Latest news of science and technology, new electronics:

The existence of an entropy rule for quantum entanglement has been proven 09.05.2024

Quantum mechanics continues to amaze us with its mysterious phenomena and unexpected discoveries. Recently, Bartosz Regula from the RIKEN Center for Quantum Computing and Ludovico Lamy from the University of Amsterdam presented a new discovery that concerns quantum entanglement and its relation to entropy. Quantum entanglement plays an important role in modern quantum information science and technology. However, the complexity of its structure makes understanding and managing it challenging. Regulus and Lamy's discovery shows that quantum entanglement follows an entropy rule similar to that for classical systems. This discovery opens new perspectives in the field of quantum information science and technology, deepening our understanding of quantum entanglement and its connection to thermodynamics. The results of the study indicate the possibility of reversibility of entanglement transformations, which could greatly simplify their use in various quantum technologies. Opening a new rule ... >>

Mini air conditioner Sony Reon Pocket 5 09.05.2024

Summer is a time for relaxation and travel, but often the heat can turn this time into an unbearable torment. Meet a new product from Sony - the Reon Pocket 5 mini-air conditioner, which promises to make summer more comfortable for its users. Sony has introduced a unique device - the Reon Pocket 5 mini-conditioner, which provides body cooling on hot days. With it, users can enjoy coolness anytime, anywhere by simply wearing it around their neck. This mini air conditioner is equipped with automatic adjustment of operating modes, as well as temperature and humidity sensors. Thanks to innovative technologies, Reon Pocket 5 adjusts its operation depending on the user's activity and environmental conditions. Users can easily adjust the temperature using a dedicated mobile app connected via Bluetooth. Additionally, specially designed T-shirts and shorts are available for convenience, to which a mini air conditioner can be attached. The device can oh ... >>

Energy from space for Starship 08.05.2024

Producing solar energy in space is becoming more feasible with the advent of new technologies and the development of space programs. The head of the startup Virtus Solis shared his vision of using SpaceX's Starship to create orbital power plants capable of powering the Earth. Startup Virtus Solis has unveiled an ambitious project to create orbital power plants using SpaceX's Starship. This idea could significantly change the field of solar energy production, making it more accessible and cheaper. The core of the startup's plan is to reduce the cost of launching satellites into space using Starship. This technological breakthrough is expected to make solar energy production in space more competitive with traditional energy sources. Virtual Solis plans to build large photovoltaic panels in orbit, using Starship to deliver the necessary equipment. However, one of the key challenges ... >>

Random news from the Archive iQOO TWS 1e Wireless Headphones 28.12.2023 The iQOO brand has launched a new product in the world of wireless headphones - iQOO TWS 1e. These headphones are a stripped-down version of the iQOO TWS 1 model introduced earlier this year. The iQOO TWS 1e is available in black with yellow accents, as well as a standard white color. iQOO TWS 1e is the perfect combination of modern design, advanced technology and affordable price. They provide high-quality sound, reliable protection and long battery life, making them a great choice for wireless headphones lovers. The design of iQOO TWS 1e is inspired by the popular Apple AirPods, and its earbuds are shaped like earbuds made of silicone material. Speakers with a diameter of 11 mm provide high-quality sound, and connectivity is via Bluetooth 5.3. The headphones support various sound effects including DeepX 3.0 stereo, 3D panoramic sound and Monster Sound for a gaming experience. iQOO TWS 1e features IP54 splash-proof protection, low latency of 55ms, and intelligent Active Noise Cancellation (ANC). The incredible autonomy of the headphones reaches 11 hours, and the total operating time without recharging is 44 hours. This cutting-edge technology costs just $25. You can choose the new product in Star Pearl Yellow or Mecha White colors.

Other interesting news:

▪ Apes cloned for the first time

▪ Hydrogen dump truck

▪ Secret microwave

▪ Water coal for heating systems

▪ The cage backs up

News feed of science and technology, new electronics

Interesting materials of the Free Technical Library:

▪ site section Infrared technology. Article selection

▪ article Sing, swallow, sing! Popular expression

▪ article Why is an area in France called Normandy? Detailed answer

▪ article Picker of goods. Standard instruction on labor protection

▪ article AON-Z80 interface. Encyclopedia of radio electronics and electrical engineering

▪ article How Walkers Walk. physical experiment

Leave your comment on this article:

All languages ​​of this page

Arabic	Hebrew	Polish
Bengali	Hindi	Portuguese
Chinese	Italian	Spanish
English	Japanese	Turkish
French	Korean	Ukrainian
German	Malay	Vietnamese

Home page | Library | Articles | Website map | Site Reviews

www.diagram.com.ua
2000-2024