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Lecture notes, cheat sheets
Civil law. A special part. Settlement obligations (most important)
Directory / Lecture notes, cheat sheets Table of contents (expand) Topic 17. PAYMENT OBLIGATIONS 17.1. General provisions on cash and non-cash payments Payments on the territory of the Russian Federation are made by cash and non-cash payments. Settlements with the participation of citizens, not related to their entrepreneurial activities, can be made in cash without limiting the amount or by bank transfer. Settlements between legal entities or with the participation of citizens related to their entrepreneurial activities, as a general rule, must be made in a non-cash manner. Settlements between these persons in cash are also possible, but only in cases where otherwise is not established by law (Article 861 of the Civil Code). The law does not contain an exhaustive list of forms of non-cash payments that can be used by participants in property turnover, but is limited to direct indication and regulation of the main ones: settlements by payment orders, letters of credit, checks, settlements by collection. The parties under the contract have the right to choose any of the forms of payment (for example, payment by bill), but within the limits of those provided for by law, banking rules and business practices (Article 862 of the Civil Code). 17.2. Cash and non-cash payments When paying in cash, there are no independent settlement obligations. The transfer of money usually represents the actions of the debtor to fulfill the corresponding monetary obligation, which is part of the civil law obligation to transfer goods, perform work or provide services, therefore, at present, the legal regulation of cash settlements in its civil law part is limited only by setting the maximum amount payment in cash in relations between legal entities and citizens-entrepreneurs. Non-cash payments are understood as settlements under civil law transactions and other grounds (for example, for the payment of taxes and other obligatory payments to the budget and extra-budgetary funds) using for this purpose the balances of funds in bank accounts. The essence of the non-cash form of payment is that instead of transferring cash, the corresponding amounts of money are debited or credited to the client's account. The implementation of settlement operations by banks is carried out in compliance with the general rules relating to the execution of a bank account agreement. Non-cash payments are made on the basis of documents of the established form. The Civil Code directly provides for and regulates four forms of non-cash payments: 1) payment orders; 2) under a letter of credit; 3) by collection; 4) checks. Settlements by payment orders (bank transfer). This form of non-cash payments is most often used in property transactions. In accordance with paragraph 1 of Art. 863 of the Civil Code, when making payments by payment orders, the bank undertakes, on behalf of the payer, at the expense of funds in his account, to transfer a certain amount of money to the account of the person specified by the payer in this or another bank within the period provided for by law or established in accordance with it, if shorter the period is not provided for in the bank account agreement or is not determined by business customs applied in banking practice. According to paragraph 1 of Art. 865 of the Civil Code, the execution of a payment order consists in the fact that the bank that accepted it is obliged to transfer the corresponding amount of money to the bank of the recipient of funds for its crediting to the account of this person indicated in the order. The direct transfer of a sum of money on behalf of the client by the bank serving him to the bank of the payee is possible only when these banks have correspondent relations. In other cases, the bank that received the payment order has the right to attract other banks to carry out operations to transfer funds to the account specified in the client's order (clause 2 of article 865 of the Civil Code). At the same time, the period provided for by law or established in accordance with it must be observed, unless a shorter period is provided for by the bank account agreement or is not determined by the customs of business turnover applied in banking practice (clause 1 of article 863 of the Civil Code). This period is calculated from the moment the bank receives the payment order and until the amount of money to be transferred is credited to the recipient's account. Currently, in accordance with Federal Law No. 10.07.2002-FZ of July 86, 80 "On the Central Bank of the Russian Federation (Bank of Russia)", the terms for making cashless payments are determined by the Bank of Russia. As established by Art. XNUMX of this Law, the total period of cashless payments should not exceed two business days within the territory of one subject of the Russian Federation and five business days within the Russian Federation. The rules governing settlements by payment orders apply not only to the relationship between a bank and an account holder with that bank. An order to transfer funds can also be accepted by a bank from a person with whom there is no bank account agreement. In this case, it is necessary to be guided by the norms set forth in § 2 Ch. 46 of the Civil Code, unless otherwise provided by law, issued in accordance with it by banking rules or does not follow from the essence of these relations (clause 2 of article 863 of the Civil Code). Settlements under a letter of credit. When making payments under a letter of credit, the bank acting on behalf of the payer to open the letter of credit and in accordance with its instructions (issuing bank), undertakes to make payments to the recipient of funds or to pay, accept or honor a bill of exchange or to authorize another bank (executing bank) to make payments to the recipient funds or pay, accept or take into account a bill of exchange (paragraph 1, clause 1, article 867 of the Civil Code). The rules on the executing bank (paragraph 2, clause 1, article 867 of the Civil Code) apply to the issuing bank making payments to the recipient of funds or paying, accepting or accounting for a bill of exchange. The peculiarity of the letter of credit form of payment is that when it is used, funds are not transferred to the recipient's account, but are allocated, "booked" for settlements with the recipient of funds in the future. To determine the conditions for receiving these funds (letter of credit conditions), an agreement is concluded between the payer and the recipient of the funds, and these conditions are duplicated in the payer's instruction to the bank to open a letter of credit. For the execution of a letter of credit, i.e. in order to pay the corresponding amount of money, its recipient must submit to the bank that opened the letter of credit, or to another (executing) bank, documents confirming the fulfillment of all the conditions of the letter of credit (for example, documents confirming the performance of work under a specific agreement, for which payment is made in a letter of credit form ). The law provides for the possibility of opening the following types of letters of credit: ▪ covered (deposited) and uncovered (guaranteed) letter of credit; ▪ revocable and irrevocable letter of credit; ▪ Confirmed letter of credit. Settlements for collection. When making collection payments, the issuing bank undertakes, on behalf of the client, to carry out at his expense actions to receive payment or acceptance of payment from the payer (clause 1 of Article 874 of the Civil Code). In accordance with paragraph 2 of Art. 874 of the Civil Code, in order to fulfill the client's order, the issuing bank has the right to attract another bank (executing bank). The execution of a collection order consists in the fact that the bank executing it presents to the payer the exactor's documents in the form in which they were received, with the exception of the marks and inscriptions of banks necessary for processing the collection operation. Documents put up by the claimant for collection must comply with the requirements established by law or banking rules for their content and form. Such documents are checks, bills of exchange, payment requests paid by way of prior acceptance, payment requests-orders, etc. Payments by checks. A check is a security containing an unconditional order from the drawer to the bank to pay the amount specified in it to the check holder (clause 1 of Article 877 of the Civil Code). The main participants in relations for settlements by checks are the issuer, the check holder and the payer. The drawer is the person who issued the check; holder of a check - a person who is the owner of the issued check; payer - the bank making the payment on the presented check. In addition, an endorser can participate in these relations - a holder of a check, transferring a check to another person by means of an endorsement (endorsement), and an availer - a person who has given a guarantee for payment of a check, drawn up with a guarantee inscription on it (aval). Only banks or other credit organizations licensed to engage in banking activities can act as payers on a check. Terms of presenting checks for payment are determined by the internal bank rules for conducting operations with checks. Revocation of a check before the expiration of the period for its presentation is not allowed (paragraph 3 of article 877 of the Civil Code). The drawer may issue an order, nominal or bearer check. The person who paid the check has the right to demand that the check be handed over to him with a receipt for payment. Some features have the transfer of rights by check. So, a personal check cannot be transferred to another person. In a transferable check, an endorsement to the payer has the force of a receipt for receiving payment (Article 880 of the Civil Code). Presentation of a check for payment is carried out by the holder of the check by presenting the check to the bank serving the holder of the check for collection (collection of the check). In this case, payment of the check is made in the general manner provided for the execution of a collection order. If the payer refuses to pay the check presented for payment, this circumstance must be certified in one of the following ways: ▪ by a notary’s protest or by drawing up an equivalent act; ▪ by the payer’s mark on the check about the refusal to pay it, indicating the date the check was submitted for payment; ▪ a mark from the collecting bank indicating the date indicating that the check was issued on time and not paid (clause 1 of Article 883 of the Civil Code). The holder of a check shall be obliged to notify his endorser and drawer of the non-payment of a check within two business days following the date of the protest or an equivalent act. If the payer refuses to pay the check, the holder of the check has the right to demand payment on the check from all persons liable for it: the drawer, availers, endorsers, who are jointly and severally liable to the holder of the check (paragraph 1 of article 885 of the Civil Code). The claim of the check holder against the indicated persons may be brought within six months from the date of expiry of the term for presenting the check for payment (clause 3 of article 885 of the Civil Code). In recent years, electronic forms of payment have become increasingly widespread in banking practice, in which non-cash payments are carried out mainly using telecommunication communication systems, and paper document flow is minimized. Author: Ivakin V.N. << Back: Bank account and bank deposit agreements (Bank account agreement. Bank deposit agreement) >> Forward: simple partnership agreement
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