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Lecture notes, cheat sheets
Civil law. A special part. Bank account and bank deposit agreements (the most important)
Directory / Lecture notes, cheat sheets Table of contents (expand) Topic 16. BANK ACCOUNT AND BANK DEPOSIT AGREEMENTS 16.1. Bank account agreement In accordance with paragraph 1 of Art. 845 of the Civil Code, under a bank account agreement, the bank undertakes to accept and credit funds received to the account opened by the client (account holder), fulfill the client's instructions to transfer and issue the appropriate amounts from the account and conduct other operations on the account. The bank account agreement is consensual, bilateral and free of charge (if the agreement does not directly provide for its compensation). The subjects of the bank account agreement are the bank or other credit organization licensed to perform this type of banking operations (clauses 1, 4 of article 845 of the Civil Code) and the client (account owner). Any individual or legal entity can be a client under this agreement, however, the regime of bank accounts opened for different types of entities is different. So, for example, current accounts are not opened for legal entities, and settlement accounts for branches of legal entities or citizens who do not have entrepreneurial status. Since a legal entity always participates as a party to a bank account agreement, this agreement must be concluded in a simple written form (clause 1, article 161 of the Civil Code). According to paragraph 1 of Art. 846 of the Civil Code, when concluding a bank account agreement, a bank account is opened for a client or a person indicated by him on the terms agreed by the parties. The procedure for opening a bank account is determined by banking rules. The main responsibility of the bank is to receive and credit funds received on the account opened by the client, as well as to fulfill its instructions for transferring and issuing the corresponding amounts from the account and carrying out other operations on the account. The bank is obliged to perform operations for the client provided for accounts of this type by law, banking rules established in accordance with it and business practices applied in banking practice, unless otherwise noted by the agreement (Article 848 of the Civil Code). The bank is not entitled to determine and control the directions of use of the client's funds and establish other restrictions not provided for by law or the bank account agreement on its right to dispose of the funds at its own discretion (clause 3 of article 845 of the Civil Code). In order to dispose of the funds on the account, the Client is obliged to draw up and submit to the bank documents that comply with the requirements of the law, banking rules and bank account agreement (payment orders, checks, etc.) and duly certified (signed, for example, in accordance with the signature samples in bank card of the client or using an electronic digital signature). Such documents certify the rights of persons who, on behalf of the client, carry out orders for the transfer and issuance of funds from the account (clause 1 of article 847 of the Civil Code). The verification of the powers of these persons is carried out by the bank in the manner determined by the banking rules and the agreement with the client. The bank account agreement may include a condition for the bank to make payments from the account, despite the lack of funds. In such cases, the bank is considered to have granted the client a loan for the corresponding amount from the date of payment. The rights and obligations of the parties related to the crediting of an account are determined by the rules on loans and credit, unless otherwise provided by the bank account agreement (Article 850 of the Civil Code). According to Art. 857 of the Civil Code, the bank is obliged to keep the secrecy of the bank account, operations on it and information about the client. Information constituting banking secrecy may be provided only by the clients themselves or their representatives, as well as submitted to credit bureaus on the grounds and in the manner prescribed by law. State bodies and their officials are provided with such information only in cases and in the manner prescribed by law. In the event that the bank discloses information constituting bank secrecy, the client, whose rights have been violated, has the right to demand from the bank compensation for the losses caused. In the cases stipulated by the bank account agreement, the client pays for the bank's services for performing transactions with funds in the account. The fee for bank services, if it is established by the agreement, may be charged at the end of each quarter from the client's funds in the account, unless the parties agree otherwise (Article 851 of the Civil Code). The bank can use the funds available on the account, guaranteeing the client's right to freely dispose of these funds (paragraph 2 of article 845 of the Civil Code). In this regard, as a general rule, the bank is obliged in accordance with Art. 852 of the Civil Code to pay interest for the use of funds in the account, the amount of which is credited to the account. The amount of interest must be credited to the account within the terms established by the agreement, and in the case when such terms are not established by the agreement, after the expiration of each quarter. Interest is paid by the bank in the amount determined by the agreement, and in the absence of an appropriate condition in the agreement - in the amount usually paid by the bank on demand deposits (Article 838 of the Civil Code). At the same time, according to the terms of the agreement, the bank may not pay interest for the use of the client's funds. According to Art. 858 of the Civil Code, restriction of the client's rights to dispose of the funds on the account is allowed only when seizing the funds on the account or suspending operations on the account in cases provided for by law. The bank is obliged to perform the relevant operations on the account within the time limits established by law and the contract (Article 849 of the Civil Code). In accordance with Art. 854 of the Civil Code, funds are debited from the account by the bank on the basis of the client's order. If there are funds on the account, the amount of which is sufficient to satisfy all the requirements for the account, these funds are debited from the account in the order in which the client's orders and other documents for debiting are received, unless otherwise provided by law, i.e. in calendar order. If the funds on the account are not enough to satisfy all the claims made against it, the funds are debited in the order of priority established by law. In total, six such queues were installed. Write-off of funds from the account for claims relating to one queue is carried out in the order of the calendar order of receipt of documents (clause 2 of article 855 of the Civil Code). According to paragraph 2 of Art. 854 of the Civil Code, the debiting of funds on the account without the client's order is allowed by a court decision, as well as in cases established by law or provided for by an agreement between the bank and the client. There are a number of cases in the legislation when debiting funds from an account can be carried out without the client's order (indisputable debiting). The Bank is responsible for improper execution of operations on the account. Such liability arises in cases of untimely crediting of funds received by the client to the account, their unreasonable debiting by the bank from the account, as well as failure to comply with the client's instructions to transfer funds from the account or to issue them from the account (Article 856 of the Civil Code). For improper performance of operations on the account, the bank is obliged to pay interest to the client in the manner and in the amount provided for in Art. 395 GK. Interest is subject to accrual on the amount for which the transaction was improperly performed. The penalty applied on the basis of Art. 856 of the Civil Code, is a credit. Accordingly, if the client has suffered losses due to improper transactions on the account, then he has the right to recover them from the bank in the part not covered by the penalty. The bank account agreement is terminated at any time upon a written application of the client. Unless otherwise provided by the agreement, in the absence of funds on the client's account and operations on this account for two years, the bank has the right to refuse to execute the bank account agreement by notifying the client in writing. The bank account agreement is considered terminated after two months from the date of sending such a warning by the bank, if no funds have been received on the client's account within this period. At the request of the bank, the bank account agreement may be terminated by the court in the following cases: ▪ when the amount of funds stored in the client’s account is below the minimum amount provided for by banking rules or agreement, if such amount is not restored within a month from the date the bank warned about this; ▪ if there are no transactions on this account during the year, unless otherwise provided by the agreement. The bank account agreement is terminated upon receipt of the client's application to terminate the agreement or close the account, unless a later date is specified in the application itself. Termination of the bank account agreement is the basis for closing the client's account. The balance of funds on the account is issued to the client or, at his direction, transferred to another account no later than seven days after receiving the client's application to terminate the contract (Article 859 of the Civil Code). Depending on the volume of settlement transactions that a bank client is entitled to make, accounts are divided into settlement, current and special. Settlement accounts are currently being opened for all legal entities, as well as individual entrepreneurs. Bank customers are entitled to carry out all types of settlement operations (non-cash payments) from the current account. In addition, banks provide them with services of a cash nature (acceptance and issuance of cash) in accordance with the rules established by law. Legal entities and individual entrepreneurs have the right to open an unlimited number of settlement accounts. Current accounts are opened for organizations that do not have the rights of a legal entity, including branches and representative offices of legal entities. In addition, separate subdivisions of legal entities located outside their location can open settlement sub-accounts, which, in terms of their legal regime, almost do not differ from current accounts. On current accounts and settlement sub-accounts, these organizations can carry out a limited range of settlement operations related to the main activity of a legal entity. Social payments (salaries, vacation pay, etc.) are not made from these accounts, and the banks in which they are opened do not provide cash services to these clients. Bank accounts opened by citizens are also current. On such accounts, citizens are entitled to make payments in a non-cash manner, except for payments related to their entrepreneurial activities. Certain types of special accounts (budget, currency, loan, deposit) have their own characteristics. Interbank (in particular, correspondent) accounts are also allocated. 16.2. Bank deposit agreement In accordance with paragraph 1 of Art. 834 of the Civil Code, under a bank deposit agreement, one party (bank), which has accepted the amount (deposit) received from the other party (depositor) or received for it, undertakes to return the deposit amount and pay interest on it on the terms and in the manner prescribed by the agreement. A bank deposit agreement is real, since it is considered concluded only from the moment the depositor makes a sum of money (deposit) in the bank. This agreement refers to reimbursable and unilateral agreements, since it only gives rise to the right of the depositor to demand the return of the amount of money deposited as a deposit, as well as the payment of interest and the corresponding obligation of the bank. In addition, a bank deposit agreement concluded with citizens is recognized as a public agreement (clause 2, article 834 of the Civil Code). Thus, the provision of deposit services to citizens is the responsibility of banks. According to par. 1 p. 3 art. 834 of the Civil Code, the rules on the bank account agreement apply to the relations between the bank and the depositor on the account to which the deposit has been made, unless otherwise provided by the rules of Ch. 44 of the Civil Code or does not follow from the essence of the bank deposit agreement. A bank deposit agreement is not a type of a bank account agreement due to the difference in the purposes of these agreements. The parties to the bank deposit agreement are the bank and the depositor. At the same time, the service provider in relation to citizens is not just a credit institution, but a bank. According to Art. 835 of the Civil Code, art. 13, 36 of the Federal Law of 02.12.1990 No. 395-1 "On Banks and Banking Activities" banking operations to raise funds for deposits can be carried out by banks only on the basis of a license issued by the Central Bank of the Russian Federation. In addition, in accordance with Art. 36 of the above Law, the right to attract funds from individuals to deposits is granted only to those banks, from the date of state registration of which at least two years have passed. As for the acceptance of deposits (deposits) from legal entities, the right to exercise it can also be granted to non-bank credit organizations, whose relations with depositors in such cases are subject to the rules on bank deposits (paragraph 4 of article 834 of the Civil Code). Any subject of civil law can act as a contributor. In particular, paragraph 2 of Art. 26 of the Civil Code establishes that minors aged 14 to 18 have the right to independently, without the consent of their parents, adoptive parents and guardian, in accordance with the law, make deposits to credit institutions and dispose of them. The law allows the deposit of funds to the depositor's account by third parties (Article 841 of the Civil Code). A bank deposit agreement always acts as a reimbursable agreement, since the law (clause 1 of article 838 of the Civil Code) contains an imperative rule on the payment by the bank to the depositor of interest on the amount of the deposit. According to Art. 836 of the Civil Code, a bank deposit agreement must be made in writing. The written form of the bank deposit agreement is considered to be complied with if the deposit is certified by a savings book, savings or deposit certificate or other document issued by the bank to the depositor that meets the requirements stipulated for such documents by law, banking rules or business customs. Failure to comply with the written form of the bank deposit agreement shall entail its invalidity (insignificance). An essential condition of the bank deposit agreement is only its subject. According to the general rule established by Art. 843 of the Civil Code, the conclusion of a bank deposit agreement with a citizen and the deposit of funds into his deposit account are certified by a savings book. Other may be determined by agreement of the parties. A bank deposit agreement may provide for the issuance of a personal savings book or a savings book to bearer. A nominal savings book is a document that only certifies that the deposit belongs to a certain person, and a bearer savings book is recognized by law as a security. Securities also include savings and deposit certificates. A savings (deposit) certificate certifies the amount of the deposit made to the bank and the right of the depositor (certificate holder) to receive the deposit amount and interest stipulated by the certificate in the bank that issued the certificate or in any branch of this bank after the expiration of the established period. Both savings and deposit certificates can be bearer or registered (Article 844 of the Civil Code). Certificates must be current. In the case of early presentation of a savings (deposit) certificate for payment, the bank pays the amount of the deposit and interest paid on demand deposits, unless the terms of the certificate establish a different amount of interest (paragraph 3 of article 844 of the Civil Code). Recently, the use of plastic cards on deposits of citizens has become more and more widespread, which allow you to carry out settlement operations in the same way as with a savings book. The main obligations of the bank, which respectively correspond to the basic rights of the depositor, are the return to the depositor of the amount of the deposit received by the bank and the payment of interest due to him. The law contains special rules on ensuring the return of the deposit (Article 840 of the Civil Code). Banks are obliged to ensure the return of deposits of citizens through compulsory insurance, and in cases provided for by law and in other ways. The return of deposits of citizens by a bank in the authorized capital of which the Russian Federation, its constituent entities, as well as municipalities have more than 50% of shares or stakes, in addition, is guaranteed by their subsidiary liability for the requirements of the depositor to the bank in the manner provided for in Art. 399 GK. Methods for the bank to ensure the return of deposits of legal entities are determined by the bank deposit agreement. When concluding a bank deposit agreement, the bank is obliged to provide the depositor with information on the security of the return of the deposit. The execution of the bank deposit agreement is carried out primarily by paying interest on the deposit. The accrual of these interest begins from the day following the day the funds are received by the bank, and until the day it is returned to the depositor, inclusive, and if it is debited from the depositor's account for other reasons, until the day of debiting, inclusive. Unless otherwise provided by the bank deposit agreement, interest on the amount of the bank deposit is paid to the depositor at his request at the end of each quarter separately from the amount of the deposit, and interest unclaimed within this period increases the amount of the deposit on which interest is accrued. When the deposit is returned, all interest accrued up to this point is paid (Article 839 of the Civil Code). According to paragraph 2 of Art. 838 of the Civil Code, unless otherwise noted by the bank deposit agreement, the bank has the right to change the amount of interest paid on demand deposits. The amount of interest paid on other types of deposits made by a citizen cannot be unilaterally reduced by a bank, unless otherwise provided by law. At the same time, when the depositor is a legal entity, a unilateral reduction by the bank of the amount of interest is not allowed, unless otherwise provided by law or an agreement (paragraph 3 of article 838 of the Civil Code). Since a monetary obligation arises on the basis of a bank deposit agreement, the consequences of non-fulfillment or improper fulfillment of the conditions for the return of the deposit and the payment of interest on it are determined according to the rules established by Art. 393, 395 of the Civil Code. In accordance with Art. 837 of the Civil Code, the main division of deposits into types is made according to the terms of their return. A bank deposit agreement is concluded on the terms of issuing a deposit on first demand (demand deposit) or on the terms of returning the deposit after the expiration of a period specified in the agreement (term deposit). At the same time, the agreement may provide for making deposits on other terms of their return that do not contradict the law. Under a bank deposit agreement of any kind, the bank is obliged to issue the deposit amount or part of it at the first request of the depositor. This rule does not apply only to deposits made by legal entities on other terms of their return, provided for by the agreement. When returning a term or other deposit, other than a demand deposit, to the depositor at his request before the expiration of the term or before the occurrence of other circumstances specified in the bank deposit agreement, the bank pays interest in the same amount as for demand deposits, unless the agreement determined by a different size. In cases where the depositor does not require the return of the amount of the term deposit after the expiration of the term or the amount of the deposit made on other terms of return, upon the occurrence of the circumstances provided for in the agreement, the agreement is considered extended on the terms of a demand deposit, unless otherwise provided by the agreement. According to Art. 842 of the Civil Code, it is possible to make deposits in favor of third parties. According to the intended purpose, deposits can be divided into deposits for the birth of a child or for the child to reach a certain age, for marriage, pension, etc. All deposits of this kind are varieties of term deposits. Author: Ivakin V.N. << Back: Loan, credit and financing agreements for the assignment of monetary claims (Loan agreement. Credit agreement. Financing agreement for the assignment of a monetary claim) >> Forward: Settlement obligations (General provisions on cash and non-cash payments. Cash and non-cash payments)
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