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 of 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 (loan) to the borrower in the amount and on the terms stipulated by the agreement, and the borrower undertakes to return the amount received and pay interest on it.
The rules on the loan agreement apply to relations under the loan agreement, unless otherwise provided by the rules of § 2 of Chapter. 42 of the Civil Code and does not follow from the essence of the loan agreement (clause 2 of Article 819 of the Civil Code).
By its legal nature, the loan agreement is consensual, compensated and bilateral. Unlike a loan agreement, it comes into force when 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 borrowing relationships. A credit agreement also differs from a loan agreement in its subject composition. Only a bank or other credit organization that has a license from the Central Bank of the Russian Federation to carry out such operations can act as a lender here.
The subject of a loan agreement can only be money, but not things. Moreover, most loans are issued in non-cash form. That is why the law speaks of the provision under this agreement not of money, but of funds (clause 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 penalty of its nullity.
A loan agreement is always compensated. The remuneration to the lender is determined in the form of interest accrued on the loan amount for the entire period 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 lender in this agreement is to provide the borrower with funds in accordance with the terms of the agreement (one time or in parts).
The borrower's responsibilities are to repay the loan received and pay the interest for its use stipulated by the agreement or law. The fulfillment of this obligation is regulated by the rules on the performance of its obligations by the borrower under the loan agreement.
A feature of the loan agreement is the possibility of unilateral refusal from its execution by 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 clearly indicating that the amount provided to the borrower will not be repaid on time. The borrower has the right to refuse to receive a loan in whole or in part by notifying the lender before the deadline established by the agreement for its provision, 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 if he violates the obligation for the intended use of the loan provided for in the agreement (clause 3 of Article 821 of the Civil Code).
The parties may enter into an agreement providing for the obligation of one party to provide the other party with things defined by generic characteristics (commodity credit agreement). The rules on a loan agreement apply to such agreement, unless otherwise provided by the above agreement and does not follow from the essence of the obligation. The conditions relating to the things provided, their containers and packaging must be fulfilled in accordance with the rules on the contract for the sale of goods (Articles 465 - 485 of the Civil Code), unless otherwise provided by the trade credit agreement (Article 822 of the Civil Code). Unlike a regular 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 constitute, unless otherwise provided by law, one of the conditions of agreements, the execution of which is associated with the transfer of money or other things determined by generic characteristics into the ownership of the other party. A commercial loan is provided, in particular, in the form of an advance, prepayment, deferment and installment payment for goods, work or services (clause
Loan agreement. — Civil law. Lecture notes.
1 tbsp. 823 of the Civil Code), a condition on which may be included in contracts of sale, lease, contract, etc. Participants in the resulting relations (including creditors) can be both legal entities and citizens who are parties to the relevant civil law contracts.
The rules on loans and credit apply to a commercial loan, unless otherwise provided by the rules on the agreement 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).
Loan agreement: conclusion and features
What is a loan agreement?
Essential terms of the loan agreement
Features of the loan agreement
Traps of a loan agreement
Terms of the consumer credit (loan) agreement
What is a loan agreement?
Before we talk about the loan agreement, let's define what it is?
From Article 819 of the Civil Code of the Russian Federation we can conclude that loan agreement is a written agreement between a commercial bank and a borrower, according to which:
the bank undertakes to provide a loan for the agreed amount within a certain period and for a specified fee;
the borrower undertakes to use and repay the loan issued by the bank, as well as fulfill all the terms of the agreement.
From this we can draw the following conclusions (including differences from the loan agreement):
a loan can only be issued by specialized credit organizations (as opposed to a loan that can be issued by any organization or individual);
the loan agreement necessarily provides for the payment of interest (unlike a loan, which can be either interest-bearing or interest-free);
The subject of the loan can only be cash (while the loan can be in both real and monetary terms).
You must understand that each contract is unique and its terms depend on the characteristics of each type of contract, as well as the will of the parties. Nevertheless, there are conditions (they are called essential) that any loan agreement must contain and without which the agreement is considered not concluded. The essential terms of the loan agreement include:
- Other conditions that the parties consider essential (according to Article 432 of the Civil Code), i.e. such conditions under which, at the request of one of the parties, an agreement must be reached. Such conditions usually include conditions on bank commissions (not all of which are legal), loan repayment period, intended use and loan security.
Subject of the loan agreement(Article 432, 819 of the Civil Code of the Russian Federation), i.e. (taking into account that the subject of the agreement is only funds) the amount and procedure for repaying the loan and interest on it.
In cases where bank cards of the Central Bank of the Russian Federation are used in settlements, in its letters dated November 22, 2010 N 154-T “On recommendations for disclosing information on the basic conditions for using a bank card and on the procedure for resolving conflict situations related to its use” and from 09.17.2013 N 183-T "On the offer by credit institutions of settlement (debit) cards with overdraft and credit cards to customers" to avoid the occurrence of overdue debt on the loan and interest on it recommends to issuers of debit cards with overdraft and credit cards disclose separately and in a way accessible to clients information about:
loan repayment procedure;
the moment of fulfillment of loan obligations to the bank (payment of interest on the loan) provided using a bank card;
optimal timing for performing loan repayment transactions (loan interest) using a bank card;
the fact that the agreement signed by the client contains elements of both an agreement providing for transactions using bank cards and a credit agreement;
the procedure for granting a loan in cases where a credit card is offered to a client without a personal visit to a credit institution;
the procedure for changing the terms of the loan, including changing the size of the credit limit and the amount of the corresponding commission fees;
the procedure for charging fees associated with obtaining and using a debit card with an overdraft or credit card, including during the grace period for credit cards, as well as an indication of whether fees will be deducted from the amount of the loan provided;
situations in which the client’s right to use a debit card with an overdraft or a credit card may be suspended, including in the event of the client’s failure to fulfill obligations to repay the loan, as well as the procedure for prior notification of the client about the suspension of this right;
the client's liability in the event of non-fulfillment (improper fulfillment) of obligations to repay the loan, including the amounts (how they are determined) of the amounts of money collected by the credit institution from the client depending on the size and (or) period of non-fulfillment (improper fulfillment) of obligations;
other information on the basis of which clients can make informed decisions about the need to obtain (use) debit cards with overdraft and credit cards.
At the same time, explanations of special terminology should ensure accessibility and understandability of information for clients who do not have special knowledge, and the information itself, in accordance with Article 8 of the Law of the Russian Federation “On the Protection of Consumer Rights,” is brought to the attention of bank clients in a clear and accessible form.
Based on these rules, information that, for example, is indicated in small print cannot be considered reliable, because The small print of the contract makes it extremely difficult to visually perceive the text of the contract, which does not allow the consumer to receive complete information and make the right choice.
Features of the loan agreement
Despite the fact that the volume of mortgage lending continues to gradually decline, the mechanism for obtaining a loan for an apartment is of considerable interest.
One of the key points here is the correct execution of all documents related to obtaining a loan - this determines whether the bank client will be able to obtain a loan in principle, and how burdensome debt repayment will be for him.
Of course, the most important document when obtaining a housing loan is the loan agreement. As a rule, within the framework of one credit program, banks offer their clients standard agreements, and in most cases credit institutions do not agree to change their terms. Naturally, it will not be possible to change the terms of the loan agreement even after it is signed by the borrower. That is why the lending conditions, which are determined by this document, require special attention.
Traps of a loan agreement
One of the most common pitfalls for a client is incorrect determination of the payment date on loan. The loan agreement specifies the date no later than which funds must be transferred to an account specially created by the credit institution to record the payment of a specific debt. Many borrowers believe that this date is the last day in each month when it is necessary to transfer funds to the bank.
Here it is necessary to take into account that it will take some time for the bank to credit the funds to the account (in some cases this takes up to three days). This means that the borrower must make payments on the loan so that the funds arrive in the account on the specified day. Otherwise, the bank client may face penalties and fines, and formally in such a situation the bank will be right.
Loan agreement in Russian civil law
Another common problem is related to early repayment of the loan. Many credit institutions allow it only after a certain period has passed from the date of issuance of the loan. The bank client must clarify this point - exactly when he will be able to begin early repayment of the loan, as well as what sanctions the bank provides for this (the most common is the introduction of additional fees). In this case, it is necessary to clarify what the fate of a particular loan will be in case of early repayment - the bank can either reduce the size of the monthly payment in proportion to how much “extra” funds will be credited to the client’s account, or reduce the loan repayment period (the latter is quite rare).
Another important point is customer service cost credit organization. Thus, the bank may charge the client certain amounts for opening and maintaining an account, as well as for the monthly transfer of funds to it. By and large, additional expense items can be almost anything, and the amounts of additional payments can reach significant amounts. That is why this point needs to be discussed separately either with a lawyer or with a bank specialist. It would also be useful to obtain documentary evidence of the words of bank employees regarding additional payments.
It is worth noting that unpleasant surprises can await a bank client even before the funds arrive in his account. First, the borrower needs to clarify how many days will this transfer take?- It is based on the period specified in the loan agreement that the date of concluding the purchase and sale agreement should be calculated.
In addition, a bank client may be refused a loan even after the loan agreement itself has been signed. According to the law, even if the agreement is signed before the purchase and sale transaction, banks have the right to revoke a positive decision if they have doubts that the loan will be repaid on time and in full.
Most of the traps outlined above are illegal because... violate consumer rights, but banks, knowing this, with asinine stubbornness, try to squeeze everything out of the borrower, so they usually have to defend their legal rights by making claims to the bank and (or) suing the bank in court.
Terms of the consumer credit (loan) agreement
Based on Part 12 of Article 5 of Federal Law No. 353-FZ of December 21, 2013 “On Consumer Credit (Loan)”, Bank of Russia Directive No. 3240-U of April 23, 2014 “On the tabular form of individual conditions” came into force on July 1, 2014 consumer credit (loan) agreement", according to which:
the individual terms of the consumer credit (loan) agreement must be reflected starting from the first page of the agreement in the form of a table.
the table consists of a general header, 3 columns (N subsection, condition and condition content) and 16 lines and is shown below.
the first two columns are specified in the form, the third is filled in by the lender.
omitting rows is not allowed. The absence of information in the lines is indicated by the mark “Missing”.
if the condition is not applicable to this type of contract, then the “Not applicable” mark is placed. This is possible for 5 strictly defined lines. For example, it is the borrower’s obligation to enter into other agreements, the purpose of using the loan (loan), and services provided by the lender for an additional fee.
When placing part of the table on the second and subsequent pages, the heading and subheadings of the column are repeated. Entire lines are carried over to the next page, except when the content of the condition spans more than one page.
if there are other conditions in the contract that require agreement, the table is supplemented with lines containing such conditions. They are entered after line 16 with continued numbering in order.
| Individual terms of a consumer credit (loan) agreement | ||
|---|---|---|
| № | Condition | Contents of the condition |
| 1 | Credit (loan) amount or credit limit and procedure for changing it | |
| 2 | Duration of the agreement, repayment period of the loan (loan) | |
| 3 | Currency in which the loan is provided | |
| 4 | Interest rate (interest rates) (in percent per annum) or the procedure for determining it (their) | |
| 5 | The procedure for determining the foreign currency exchange rate when transferring funds by the lender to a third party specified by the borrower | |
| 6 | The number, size and frequency (timing) of payments by the borrower under the agreement or the procedure for determining these payments | |
| 7 | The procedure for changing the number, size and frequency (timing) of payments by the borrower in case of partial early repayment of the loan (loan) | |
| 8 | Methods for the borrower to fulfill obligations under the agreement at the borrower’s location | |
| 8.1 | A free way for the borrower to fulfill obligations under the agreement | |
| 9 | Obligation of the borrower to enter into other agreements | |
| 10 | Obligation of the borrower to provide security for the fulfillment of obligations under the contract and requirements for such security | |
| 11 | Purposes of the borrower using a consumer loan (loan) | |
| 12 | Responsibility of the borrower for improper fulfillment of the terms of the contract, the amount of the penalty (fine, penalty) or the procedure for determining them | |
| 13 | Condition on the assignment by the creditor to third parties of rights (claims) under the agreement | |
| 14 | Borrower's consent to the general terms of the agreement | |
| 15 | Services provided by the lender to the borrower for a fee and necessary for concluding an agreement, their price or procedure for determining it, as well as the borrower’s consent to the provision of such services | |
| 16 | Method of information exchange between lender and borrower |
The article uses materials from the November 16, 2010 issue of the "Real Estate - Expensive Mistakes" newsletter. Article updated 07/29/2012, 10/01/2013, 07/03/2014
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Topic 25. Loan and credit
Loan agreement
A loan agreement is an agreement between the parties, according to which one party (the lender) transfers into the ownership of the other party (borrower) money or other things defined by generic characteristics, and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal amount of other things received by him things of the same kind and quality.
The loan agreement is real, bilaterally binding.
A reimbursable agreement, and even if the amount of interest is not established in the agreement, it can be determined based on the refinancing rate on the day the borrower pays the debt amount or the corresponding part.
As an exception, an agreement may provide for its gratuitousness if one of two conditions is met: 1) when it is concluded between citizens for an amount of no more than 50 times the minimum wage and is not related to the entrepreneurial activity of at least one of these citizens; 2) when the subject of the contract is not money, but other things determined by generic characteristics.
The subject of the contract can be not only money, but also things determined by generic characteristics (grain, gasoline, etc.).
The parties to the agreement are the lender and the borrower. Any subject of civil law can act as a lender and borrower.
The loan agreement must be concluded in writing if its amount exceeds 10 minimum wages, and in the case where the lender is a legal entity - regardless of the amount.
The borrower has the right to challenge the loan agreement on the basis of its lack of funds, proving that money or other things were not actually received by him from the lender or were received in a smaller quantity than specified in the agreement. If the loan agreement must be concluded in writing, challenging it due to lack of money through testimony is not allowed, except in cases where the agreement was concluded under the influence of deception, violence, threats, a malicious agreement between the borrower’s representative and the lender, or a combination of difficult circumstances. If, in the process of challenging the loan agreement by the borrower due to his lack of money, it is established that money or other things were not actually received from the lender, the loan agreement is considered not concluded. When money or things are actually received by the borrower from the lender in a smaller quantity than specified in the contract, the contract is considered concluded for this amount of money or things.
The loan agreement can be certified by the issuance of securities - bills and bonds. It is permissible to conclude a targeted loan agreement. In this case, the borrower is obliged to provide the lender with the ability to control the intended use of borrowed amounts. Situations are possible when the borrower claims that money or things defined by generic characteristics were not actually received by him or were received by him in a smaller amount than specified in the agreement (challenging the loan agreement due to lack of money). The borrower must prove this circumstance, and if the agreement must be concluded in writing, then references to witness testimony are not allowed. The exception is cases when the agreement was concluded under the influence of deception, violence, threats, malicious agreement between the borrower’s representative and the lender, or a combination of difficult circumstances.
The loan agreement may be terminated early either at the initiative of the Borrower or at the initiative of the lender in cases established by law or agreement.
Loan agreement
A loan agreement is an agreement between the parties, according to which a bank or other credit organization (lender) undertakes to provide funds (loan) 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.
This agreement has its own characteristics:
Firstly, only banks and other credit organizations can act as creditors under such an agreement.
Secondly, a loan agreement can only establish a purely monetary obligation. For agreements that contain an obligation to provide on credit not money, but things, special rules on trade credit are applied, which have their own specific features, including a special scope of application.
In all cases, a loan agreement must be concluded in writing, since failure to comply with the written form entails the invalidity of such a loan agreement. Such an agreement is considered void.
If the loan agreement includes conditions on the pledge of real estate, such an agreement must be notarized and registered in the prescribed manner.
The lender has the right to refuse to provide the borrower with the loan provided for in the loan agreement, in whole or in part, if there are circumstances clearly indicating that the amount provided to the borrower will not be repaid on time.
The lender may refuse to issue a loan to the borrower in strictly defined cases: if circumstances clearly indicate that the borrower will not repay the loan on time. Such circumstances include the unsatisfactory structure of the borrower’s balance sheet. The basis for refusal of further lending to the borrower is the latter’s violation of the obligation of the intended use of the loan provided for in the contract. It is obvious that the lender’s refusal to provide a loan or termination of the agreement before such provision is also possible in the presence of appropriate circumstances provided for by the general provisions of the Civil Code of the Russian Federation on obligations.
Unlike the lender, the borrower is given greater opportunities to refuse the loan, but before receiving the loan amount. The borrower has the right to refuse to receive a loan in whole or in part by notifying the lender before the deadline established by the agreement for its provision, unless otherwise provided by law, other legal acts or the loan agreement.
The legislator does not establish any period before the moment of granting the loan, after which the borrower’s notification of refusal to receive the loan is not valid. Such a period may be specified in the loan agreement.
Trade credit agreement
A trade credit agreement is an agreement between the parties, according to which one party provides the other party with things defined by generic characteristics.
Parties to the contract are any subjects of civil law.
The subject of this loan agreement is such goods as agricultural products, semi-finished products, raw materials, fuels and lubricants, etc., the deficiency of which can be compensated by borrowing from another person. Since a trade credit agreement is concluded, as a rule, for production purposes, not only the rules on a loan (credit), but also the conditions on quantity, assortment, quality, packaging and other rules of the chapter on the purchase and sale of goods are applied to it, if otherwise not provided for in the loan agreement.
It is necessary to distinguish a trade credit agreement from a loan agreement.
Loan agreement - Civil law (Kushnir I.V.)
Unlike the loan of things, under a trade loan agreement, the borrower, firstly, has the right, in pursuance of an already concluded agreement, to demand from the lender the transfer of the relevant things.
Secondly, a trade credit agreement differs from a credit agreement (loan) in terms of the subject composition of the parties. Banks and other credit organizations act as lenders in a loan agreement. A commodity loan can be provided by any person. In practice, a trade loan agreement is usually concluded by commercial organizations.
Thirdly, all the terms of the trade credit agreement on the quantity, quality, assortment, completeness of the transferred goods, their packaging and containers are regulated by the rules on the purchase and sale agreement, unless otherwise provided in the agreement.
And finally, fourthly, the agreement may establish certain requirements for the things being transferred, moreover, a trade credit agreement, like any credit agreement, is compensated.
Commercial loan agreement
A commercial loan agreement implies the inclusion of a condition by which one party provides the other party with a deferment or installment plan for the fulfillment of any obligation (to pay money or transfer property, perform work or services). The provision of such a loan is inextricably linked with the agreement of which it is a condition. Commercial lending can be considered any discrepancy in the timing of reciprocal obligations under a concluded contract, when goods are delivered (work is performed, services are provided) before payment is made, or payment is made before the goods are transferred (work is performed, services are provided).
Commercial lending, as a rule, is carried out without special legal registration, due to one of the conditions of the concluded agreement (advance payment, installment plan, etc.).
According to the law, interest charged for using a commercial loan (including advance amounts, prepayment) is a fee for the use of funds. Interest for using a commercial loan is payable from the date determined by law or agreement. If this point is not defined by law or contract, it should be assumed that such an obligation arises from the moment of receipt of goods, works or services (in the case of deferred payment) or from the moment of provision of funds (in the case of an advance or prepayment) and terminates when fulfilled by the party received a loan, its obligations, or when returning what was received as a commercial loan.
A commercial loan is assumed to be interest-free, unless it expressly provides otherwise, in cases where an agreement is concluded between citizens for an amount not exceeding 50 times the minimum wage established by law, and is not related to the entrepreneurial activity of at least one of the parties.
In the event that the seller does not fulfill the obligation to transfer the prepaid goods and is not otherwise provided for in the purchase and sale agreement, interest is payable on the amount of the prepayment from the day when, according to the agreement, the transfer of the goods should have been made, until the day the goods are transferred to the buyer or returned to him the amount previously paid by him. The contract may provide for the seller's obligation to pay interest on the amount of the advance payment from the day of receipt of this amount from the buyer until the day the goods are transferred or the seller returns the funds if the buyer refuses the goods. In this case, interest is charged as a fee for the commercial loan provided.
In the event that the purchase and sale agreement provides for payment for the goods after a certain time after its transfer to the buyer or payment for the goods in installments, and the buyer does not fulfill the obligation to pay for the transferred goods within the period established by the agreement, the buyer is obliged to pay interest on the amount whose payment is overdue, in in accordance with the size of the refinancing rate, when, according to the contract, the goods must be paid for, before the day the buyer pays for the goods, unless otherwise provided by the Civil Code of the Russian Federation or the purchase and sale agreement.
The contract may provide for the buyer's obligation to pay interest in an amount corresponding to the price of the goods, starting from the day the goods are transferred by the seller. The specified interest, accrued (unless otherwise provided by the agreement) until the day when payment for the goods was made, is a payment for a commercial loan.
Validity period of the loan agreement
The validity period of the loan agreement is determined according to the general rules established in Article 425 of the Civil Code of the Russian Federation.
2. Loan agreement
Thus, on the basis of this norm, the loan agreement comes into force and becomes binding on the parties from the moment of its conclusion, i.e. signed by both parties. The expiration date of the contract must be agreed upon in the contract.
Often in practice there is a need to extend the term of the loan agreement (extension). As a rule, prolongation of the loan agreement, and, as a result, increasing the period for the borrower to repay the loan funds, is one of the ways to restructure credit debt. This tool for the return of so-called “problem” debts is actively used by banks in order to reduce the risks of non-repayment of issued loans.
Based on Art. 452 of the Civil Code of the Russian Federation, an agreement to amend or terminate a contract is made in the same form as the contract, unless otherwise follows from the law, other legal acts, contract or customs. In relation to extending the term of a loan agreement, usually either an additional agreement to the existing loan agreement or a new loan agreement with changed refinancing parameters is concluded.
However, in practice there are often cases when the extension of loan obligations occurs on the basis of a decision of authorized bodies (for example, in banks with state participation) without concluding additional agreements to loan agreements. In such cases, the courts recognize the extension as having taken place, despite the absence of a written additional agreement to the loan agreement, drawn up in accordance with Art. 452 of the Civil Code of the Russian Federation (resolution of the Federal Antimonopoly Service of the Moscow District dated January 29, 2003 N KG-A40/9142-02-2).
When concluding a loan agreement with an individual who attracts borrowed funds for purposes not related to business activities (consumer loan agreement), the validity period of the agreement and the repayment period of the consumer loan are agreed upon by the parties as part of the individual terms of the agreement. A consumer loan agreement is considered concluded only when the parties reach agreement on all individual terms of such an agreement. These rules apply to consumer loan agreements concluded after 07/01/2014 (part 9 of article 5, part 6 of article 7, part 2 of article 17 of the Federal Law of December 21, 2013 N 353-FZ "On consumer credit (loan) )").
80. Loan agreement
If the loan agreement is drawn up incorrectly
Return
A loan agreement is an agreement between a borrower and a lending organization, according to which a financial institution (bank, credit union or other credit organization) undertakes to provide borrowed funds to the borrower on the terms provided for in the agreement, and the loan recipient, in turn, undertakes repay the borrowed amount within the prescribed period with payment of interest accrued for using the loan.
The terms of the loan agreement must indicate:
1. The amount of funds, i.e. the amount of funds provided to a borrower by a lender.
2. Purpose of the loan. The agreement must indicate the purpose for which the borrower needs money. Even with non-targeted lending, the agreement states that the purpose of the loan is, for example, to meet the client’s current needs.
3. Loan term. This clause clearly defines the period of time within which the borrower is obliged to repay the debt to the banking organization.
4. List of required documents, as well as guarantees provided by the borrower to the lender.
5. Cost of loan, i.e. the size of the lending rate, as well as the procedure for making payments for the use of borrowed funds.
6.
Other conditions.
The lender may refuse to issue a loan to the loan applicant in whole or in part if there are circumstances indicating that the loan issued may not be repaid within the agreed period.
For many borrowers, it remains a mystery what to do if the loan agreement is drawn up incorrectly and what the consequences may be?
To begin with, any agreement, including a loan agreement, must be drawn up in writing. Failure to comply with the written form means that the concluded agreement does not have a legal basis. strength, i.e. not valid. Failure to comply with the terms of such an agreement does not pose any consequences for both parties.
What to do if the loan agreement is drawn up incorrectly and should you worry about it? An incorrectly drafted agreement can certainly be a cause for concern, but it is worth noting that such cases are not uncommon and, as a rule, they are resolved without going to court, especially if the financial institution and the borrower were able to agree on the terms of re-signing the agreement. Otherwise, disputes of this kind are resolved through court, which, as a rule, does not pose any consequences for the borrower, except for the possible re-conclusion of the contract.
Loan agreement
Most participants in property turnover, primarily professional entrepreneurs, have a constant need for a cash loan. Its satisfaction within the framework of the loan agreement is impossible, since it is of a real nature and cannot create confidence in the borrower that he will receive money at the time he needs, since the lender cannot be forced to issue a loan. Therefore, the need arose for another agreement of a consensual nature. This circumstance predetermined the emergence of a relatively independent loan agreement within the framework of the general institution of credit or borrowed obligations.
The concept of a loan agreement.
Legal regulation of the loan agreement. A credit agreement is a type of loan agreement. In accordance with paragraph 2 of Art. 819 of the Civil Code of the Russian Federation, the rules provided for in § 1 of Chapter 42 of the Civil Code of the Russian Federation on the loan agreement apply to relations under a loan agreement, unless otherwise provided by the rules on credit (§_2 of Chapter 42 of the Civil Code of the Russian Federation) and does not follow from the essence of the loan agreement. There are also a number of federal laws that mediate monetary circulation and determine the structure of the banking system in Russia: Law of the Russian Federation dated December 2, 1990 No. 395-1 “On Banks and Banking Activities”, Federal Law dated July 10, 2002 No. 86-FZ “On the Central Bank of the Russian Federation (Bank of Russia)”, etc. The terms of the loan agreement are also provided for by special banking legislation: interest on the loan, contractual terms, property liability of the parties for violation of the agreement, the procedure for its termination.
Legal characteristics of the loan agreement. The loan agreement is consensual, compensated, mutual.
Essential terms of the loan agreement. The essential conditions include the conditions regarding the subject of the contract.
Subject of the loan agreement. The subject of the loan agreement is only funds, both in cash and in non-cash form. Other things cannot be the subject of a loan agreement. The loan can also be provided in foreign currency, in the manner and under the conditions determined by the Law “On Currency Regulation and Currency Control”.
The amount of funds provided is determined in each case individually.
Term of the loan agreement. The term is not an essential condition of the loan agreement. It is possible to conclude both a fixed-term contract and a contract “on demand”. In cases where the term for repayment of the loan amount is not established by the agreement or is determined by the moment of demand, the rule of clause 1 of Art. 810 of the Civil Code of the Russian Federation: the loan amount must be repaid by the borrower within thirty days from the date the lender submits a request for this, unless otherwise provided by the agreement. When concluding a fixed-term contract, it must be borne in mind that its early execution is possible only with the consent of the creditor.
The period for which the loan amount is provided begins to flow from the moment funds are credited to the borrower's account, and from that moment interest on the loan amount is calculated.
Loan agreement price. The price in the loan agreement is understood as a fee for the loan and is expressed as a percentage charged to the borrower for the use of the funds provided. The amount of interest for using a loan depends on the state of the economy as a whole, the size of the discount rate of the Central Bank of Russia, the amount of the loan and the period for which it is provided, as well as other factors. Interest rates on loans and the procedure for paying interest are established by the bank by agreement with the client, unless otherwise provided by federal law, and are fixed in the agreement. As a rule, they consist of the refinancing rate of the Bank of Russia and interest set by the lender itself. Due to the direct extension of the rules on loans to credit, the rules of Art. 809 of the Civil Code of the Russian Federation. In particular, a situation is possible when, if a dispute arises about interest under a specific agreement, the court can determine it according to the bank interest rate or refinancing rate existing at the location of the creditor.
The creditor does not have the right to unilaterally change interest rates, except in cases established by law or agreement. Typically, in loan agreements, banks include conditions on the legality of a unilateral change in interest rates for using a loan in the event of a change in the refinancing rate of the Central Bank of the Russian Federation or in other situations.
Parties to the agreement. The parties to the agreement are the lender and the borrower.
Lender - a bank or other credit organization that has a license from the Bank of Russia for all or individual banking operations. Borrower is any individual or legal entity receiving funds for business or consumer purposes.
Loan agreement form. The loan agreement must be concluded in writing. Failure to comply with the written form entails its invalidity. Such an agreement is considered void.
Typically, credit institutions use standard forms for such agreements that they have developed. They are for the borrower a contract of adhesion, regulated according to the rules of Art. 428 Civil Code of the Russian Federation.
Obligations of the lender under the loan agreement.
The creditor under the loan agreement is obliged to:
1. Provide the borrower with funds in the amount and on the terms stipulated by the agreement.
This duty is fulfilled in several ways. If a loan is provided in cash to an individual, the borrower can receive the loan amount through the cash desk of the credit institution. If a loan is provided by non-cash funds to a legal entity, the loan amount is credited to the bank account of the borrower client. In order to receive a loan in non-cash funds, individuals must open an account to record the amounts of individual deposits attracted by the bank. This obligation is considered fulfilled from the moment funds are credited to the borrower client’s account.
The law provides for the lender the opportunity to refuse to provide the borrower with the loan provided for in the loan agreement in whole or in part if there are circumstances clearly indicating that the amount provided to the borrower will not be repaid on time (Clause 1 of Art.
821 of the Civil Code of the Russian Federation). An example of such circumstances could be the identification of any factors that undermine confidence in the debtor, holding him accountable, bankruptcy of the debtor, etc.
In the event of an unmotivated refusal by the creditor to provide a loan, provision of it in a smaller amount or in violation of the deadlines, the borrower has the right to demand the application of liability measures to him (payment of interest on the amount of debt in accordance with paragraph 1 of Article 395 of the Civil Code of the Russian Federation; compensation for losses; collection of penalties in cases established by law or contract).
2. Maintain bank secrecy about client accounts.
In accordance with Art. 26 of the Law of the Russian Federation “On Banks and Banking Activities”, all employees of a credit institution are required to keep secret the transactions, accounts and deposits of its clients and correspondents, as well as other information established by the credit institution, unless this contradicts federal law.
Information constituting banking secrecy can only be provided to the clients themselves or their representatives. Current legislation allows for the provision of information constituting bank secrecy to government bodies and their officials only in cases and in the manner prescribed by law.
If the bank discloses information constituting a bank secret, the client whose rights have been violated has the right to demand the application of liability measures (compensation for losses caused).
Obligations of the borrower under the loan agreement.
The borrower under the loan agreement is obliged to:
1. Obtain a loan provided by the lender.
However, unless otherwise provided by law, other legal acts or an agreement, the borrower has the right to refuse to receive a loan in whole or in part by notifying the lender before the deadline established by law for its provision (clause 2 of Article 821 of the Civil Code of the Russian Federation).
The agreement may provide for liability for refusal to receive a loan by the borrower or the possibility of refusal may be excluded altogether.
2. Return the amount of the loan provided and interest on it.
This obligation is considered fulfilled from the moment funds are credited to the correspondent account of the creditor credit institution.
The borrower bears responsibility for its non-fulfillment (delay in execution) according to the rules of Art. 811 of the Civil Code of the Russian Federation, unless otherwise provided by law or the loan agreement. It consists of an additional monetary burden associated with the payment of increased interest on an overdue loan. Unless otherwise established by law or the loan agreement, in cases where the borrower does not repay the loan amount on time, interest is payable on this amount in the amount provided for in paragraph 1 of Art. 395 of the Civil Code of the Russian Federation, from the day when it should have been returned until the day it is returned to the creditor, regardless of the payment of interest provided for in paragraph 1 of Art. 809 of the Civil Code of the Russian Federation.
In accordance with clause 15 of the resolution of the Plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 13/14, interest paid by the borrower on the loan amount in the amount and in the manner specified in clause 1 of Art. 809 of the Civil Code of the Russian Federation, are a payment for the use of funds and are subject to payment by the debtor according to the rules on the main monetary debt.
3. Use the loan amount in accordance with the purposes for which it was received, if the targeted nature of the loan is provided for in the agreement.
The creditor has the right:
- control the intended use of the loan; at the same time, the credit institution acquires unique control functions;
- in case of violation by the borrower of the obligation to use the loan for the intended purpose, demand from the borrower early repayment of the loan amount and payment of interest due, unless otherwise provided by the agreement;
- refuse further lending to the borrower under the agreement.
Commodity and commercial credit.
In economic activity, sometimes there is a need for temporary borrowing not of money, but of raw materials, materials, seeds and similar things in kind. The parties may enter into an agreement providing for the obligation of one party to provide the other party with things defined by generic characteristics (commodity credit agreement).
Trade credit is a type of consensual loan. This is the difference between a commodity loan and a real loan of things, when an agreement is concluded by transferring goods on loan. Consequently, the rules on monetary credit apply to a commodity loan, since otherwise is not provided for in the commodity loan agreement and does not follow from the essence of the obligation. This determines its consensual, compensatory and bilateral nature, as well as the requirement that it be in writing.
As a rule, the subject of this loan agreement is such goods as agricultural products, semi-finished products, raw materials, etc., the deficiency of which can be compensated by borrowing from another person. Since a trade credit agreement is usually concluded for production purposes, not only the rules on credit are applied to it, but also the terms on quantity, assortment, completeness, quality, packaging and other rules of the chapter on the sale and purchase of goods (Articles 465-485 Civil Code of the Russian Federation), unless otherwise provided by the trade credit agreement. Parties to the contract are any subjects of civil law.
A commercial loan is not an independent transaction of a borrowed type, but a condition of a reimbursable contract, the execution of which is associated with the transfer to the other party of amounts of money or other things determined by generic characteristics. With a commercial loan, the agreement includes a condition by which one party grants the other party a deferment or installment plan for the fulfillment of any obligation (to pay money or transfer property, perform work or services). The provision of such a loan is inextricably linked with the agreement of which it is a condition. Commercial lending can be considered any discrepancy in the timing of reciprocal obligations under a concluded contract, when goods are delivered (work is performed, services are provided) before payment is made, or payment is made before the goods are transferred (work is performed, services are provided).
In accordance with paragraph 2 of Art. 823 of the Civil Code of the Russian Federation, the rules on loans and credit must be applied to a commercial loan, unless otherwise directly provided for by the rules on the agreement from which the corresponding obligation arose, and does not contradict the essence of such an obligation (thus, the possibility provided for in Article 821 of the Civil Code of the Russian Federation is not applicable to the situation under consideration unilateral refusal to provide or receive a loan). From this, in particular, it follows that the conditions for granting a commercial loan must be drawn up in writing, as well as its paid nature. The consequences of violation by the parties of their obligations arising from commercial lending relationships are also determined by the rules on non-fulfillment of loan obligations.
In accordance with paragraphs. 13, 14 of the Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 13/14, interest charged for the use of a commercial loan (including advance amounts, prepayment) is a fee for the use of funds. If there are no conditions in the law or agreement on the amount and procedure for paying interest for using a commercial loan, courts should be guided by the provisions of Art. 809 of the Civil Code of the Russian Federation. Interest for using a commercial loan is payable from the date determined by law or agreement. If this point is not defined by law or contract, it should be assumed that such an obligation arises from the moment of receipt of goods, works or services (in the case of deferred payment) or from the moment of provision of funds (in the case of an advance or prepayment) and terminates when fulfilled by the party received a loan, its obligations, or when returning what was received as a commercial loan.
A commercial loan is assumed to be interest-free, unless it expressly provides otherwise, in cases where an agreement is concluded between citizens for an amount not exceeding 50 times the minimum wage established by law, and is not related to the entrepreneurial activity of at least one of the parties (clause 3 of Art. 809 of the Civil Code of the Russian Federation).
In the event that the seller does not fulfill the obligation to transfer the pre-paid goods and is not otherwise provided for in the purchase and sale agreement, interest is payable on the amount of the pre-payment in accordance with Art. 395 of the Civil Code of the Russian Federation from the day when, according to the contract, the transfer of goods should have been made, until the day the goods are transferred to the buyer or the amount pre-paid by him is returned to him (clause 4 of Article 487 of the Civil Code of the Russian Federation). The contract may provide for the seller's obligation to pay interest on the amount of the advance payment from the day of receipt of this amount from the buyer until the day the goods are transferred or the seller returns the funds if the buyer refuses the goods. In this case, interest is charged as a fee for the commercial loan provided.
In the case where the purchase and sale agreement provides for payment for the goods after a certain time after its transfer to the buyer or payment for the goods in installments, and the buyer does not fulfill the obligation to pay for the transferred goods within the period established by the agreement, the buyer, in accordance with clause 4 of Art. 488 of the Civil Code of the Russian Federation is obliged to pay interest on the amount whose payment is overdue, in accordance with Art. 395 of the Civil Code of the Russian Federation from the day when the goods must be paid for under the contract until the day the buyer pays for the goods, unless otherwise provided by the Civil Code of the Russian Federation or the purchase and sale agreement.
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§ 2. Loan agreement
4. Trade and commercial loan agreements
1. The concept of a loan agreement
A credit agreement is a special, independent type of loan agreement. It is this circumstance that makes it possible to apply, in a subsidiary manner, the rules on loans to regulate it, unless otherwise follows from the essence of the loan agreement (clause 2 of Article 819 of the Civil Code).
Most participants in property turnover, primarily professional entrepreneurs, have a constant need for a cash loan. Its satisfaction within the framework of the loan agreement is impossible, since it is of a real nature and cannot create confidence in the borrower that he will receive money at the time he needs, since the lender cannot be forced to issue a loan. Therefore, the financial market, within which, in essence, “money trading” takes place, needs another agreement of a consensual nature. This circumstance predetermined the emergence of a relatively independent loan agreement (within the framework of the general institution of credit or borrowed obligations).
Under a loan agreement, a bank or other credit organization (lender) undertakes to provide funds (loan) to the borrower in the amount and on the terms stipulated by the agreement, and the borrower undertakes to return the received amount of money with interest (clause 1 of Article 819 of the Civil Code).
By its legal nature, the loan agreement is consensual, compensated and bilateral. Unlike a loan agreement, it comes into force at the moment the parties reach the relevant agreement, before the actual transfer of money to the borrower (especially since in many cases such transfer is made periodically and not once). This allows the borrower, if necessary, to force the lender to issue a loan, which is excluded in borrowing relationships.
A credit agreement also differs from a loan agreement in its subject composition. Only a bank or other credit organization that has the appropriate license from the Central Bank of the Russian Federation to carry out such operations can act as a creditor (lender). Other subjects of civil law are deprived of the opportunity to provide loans under a loan agreement and can only act as borrowers.
The subject of a loan agreement can only be money, but not things. Moreover, the majority of loans are issued in non-cash form, i.e. the subject of credit relations is the rights of claim, and not money in the form of banknotes (things). That is why the law speaks of providing a loan in the form of “cash” (clause 1 of Article 819 of the Civil Code), and not “money or other things” (clause 1 of Article 807 of the Civil Code), as is the case in the loan agreement. Thus, the subject of the loan agreement is non-cash money (“cash”), i.e. rights of claim, not things. If the agreement deals with the obligation to provide things on credit (defined by generic characteristics), and not money, then such an agreement is subject to special rules on commodity credit (Article 822 of the Civil Code).
Consequently, a loan agreement, both in terms of subject composition and subject matter, has a narrower scope of application than a loan agreement *(228) . In addition, more stringent requirements are imposed on its design. According to Art. 820 of the Civil Code, it must be concluded in writing under penalty of being declared void, which is not at all required for loan agreements.
Finally, a credit agreement, unlike a loan agreement, is always compensated. The remuneration to the lender is determined in the form of interest accrued on the loan amount for the entire period of its actual use. The amount of such interest is determined by the agreement, and in the absence of special instructions in it - according to the rules of paragraph 1 of Art. 809 Civil Code, i.e. at the refinancing rate.
2. Contents and execution of the loan agreement
The obligation of the lender in this agreement is to provide non-cash funds to the borrower in accordance with the terms of the concluded agreement (once, in equal or other parts in the form of separate “tranches”, “line of credit”, etc.). The borrower's responsibilities are to repay the loan received and pay the interest for its use stipulated by the agreement or law. The procedure, terms and other conditions for fulfilling this obligation are typical for any borrowing relationship and are therefore provided for by the rules on the fulfillment of its obligations by the borrower under the loan agreement. They, in particular, determine the moment the borrower fulfills the obligation to repay the loan amount (clauses 1 and 3 of Article 810 of the Civil Code), the consequences of its delay (Article 811 of the Civil Code), the consequences of the loss of security or deterioration of its conditions (Article 813 of the Civil Code) and etc.
A feature of credit relations is the possibility of unilateral refusal to fulfill the concluded agreement on the part of both the lender and the borrower (clauses 1 and 2 of Article 821 of the Civil Code). This circumstance significantly weakens the consensual nature of the loan agreement, to a certain extent bringing it closer to a real loan agreement.
The lender has the right to unilaterally refuse to issue a loan in whole or in part if there are circumstances clearly indicating the impossibility of repaying the loan amount on time. Such a circumstance may, in particular, be the revealed insolvency of the borrower or its significant decrease, for example, when the borrower business company reduces the size of its authorized capital. Obviously, this rule serves to protect the interests of the creditor.
On the other hand, the borrower, as a general rule, cannot be forced to receive a loan (if, for example, his need for money has disappeared or decreased). Therefore, he also has the right to refuse to receive an agreed loan in whole or in part, and without motive (unless this possibility is expressly excluded by law, other legal act or the agreement itself). He is only obliged to notify the lender of his refusal before the loan period established by the agreement. If the lender incurs losses due to the borrower’s refusal, compensation for them is possible only if there is an appropriate condition in the specific loan agreement.
3. Certain types of loan agreement
The loan agreement may provide for a condition on the borrower using the received loan for certain purposes. In this case, we are talking about a targeted loan, to which the rules on the relationship of a targeted loan apply. In this case, the lender receives the right to control the intended use of the loan provided, and the borrower is obliged to provide him with the necessary conditions for this. Misuse of loan funds gives the creditor the right to unilaterally refuse further execution of the agreement, in particular to refuse further lending (clause 3 of Article 821 of the Civil Code), and to early collection of the received loan with interest due to the lender (clause 2 of Article 814 of the Civil Code ).
In banking practice, loans differ in the way they are processed and issued. Thus, lending can be carried out by “crediting an account” (Article 850 of the Civil Code). In this case, the bank pays the claims of its client’s (borrower’s) creditors within the limit stipulated by the agreement, even if there are no funds in the client’s account or for a larger amount than is in the account. Such a loan is also called a current account (Italian: conto corrento - current account) or overdraft (English: overdraft - above the account).
An on-call loan (eng. on call - before the call, before warning) provides for the right of the client (borrower) to use a bank loan from an account specially opened for this purpose, usually up to the amount (limit) specified in the agreement, and the right of the bank (lender) at any time to unilaterally order to stop lending and demand from the borrower full or partial repayment of the debt. An on-call loan provides for mandatory collateral in the form of a bank pledge of securities owned by the borrower, the market value of which may fluctuate and is therefore uncertain. For his part, the client has the right at any time to deposit into the account the amount he has withdrawn (with interest) and demand the return of the security.
Aval or acceptance of a bill by a bank as a payer is essentially also a form of bank lending. In international circulation, it is often called a reimbursement or acceptance credit. In modern domestic practice, bill credit has come to mean the issuance by banks of their bills of exchange to borrower clients, in which the role of creditors is formally no longer played by banks, but by bill holders (borrowers) who pay their counterparties with these bills. The situation in which the creditor becomes the drawer of the bill, and the borrower becomes the holder of the bill, distorts the purpose and meaning of the bill of exchange.
The Central Bank of the Russian Federation provides short-term loans to commercial banks secured by government securities (mainly in non-documentary form, i.e. secured by claims), which are called pawn loans by analogy with loans provided to citizens by pawn shops secured by property. The specificity of these loans is the special composition of their participants and the special way to ensure their repayment *(229) .
An independent type of credit relationship is a budget loan (Article 76 of the BC). Unlike a regular loan, it is provided not by credit institutions, but by public legal entities - the Russian Federation, its constituent entities, municipalities - at the expense of the corresponding budget, i.e. your treasury. A budget loan is always not only reimbursable, but also strictly targeted. Budget loans can also be provided to state and municipal unitary enterprises on an interest-free (free) basis (Article 77 of the Budget Code).
A budget loan is provided on the basis of a loan agreement with a body authorized to do so by the relevant public legal entity (usually a ministry or department of finance), with mandatory collateral in the form of a bank guarantee, surety or pledge. In this case, a mandatory preliminary check of the financial condition of the loan recipient (borrower) is carried out, and subsequently systematic checks of the intended use of the loan received. Budget loan funds are transferred to the borrower's budget account in a credit institution and then spent by him independently for the purposes specified in the agreement. In this manner, for example, capital construction of facilities for federal state needs is financed.
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Under a loan agreement, a bank or other credit organization (lender) undertakes to provide funds (loan) 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 (Article 819 of the Civil Code). Unlike a loan agreement, the subject of a loan agreement can only be funds. The rules provided for in the Civil Code for a loan agreement apply to relations under a loan agreement, unless otherwise established by § 2 of Chapter. 42 of the Civil Code and does not follow from the essence of the loan agreement. In addition to the Civil Code, credit relations are regulated by banking legislation: the Law on the Central Bank, the Law on Banks, regulations of the Bank of Russia, which determine the procedure for the provision and repayment of loans, the procedure for accrual and payment of interest, etc. The specifics of the provision and return of credit funds are determined by the Law on Currency Regulation, which establishes cases of using special accounts when providing and repaying loans. Business customs play a significant role in credit relations, especially when it comes to syndicated loans, when several banks simultaneously lend to the borrower, forming a so-called syndicate. A single agent bank usually enters into a relationship with the borrower, acting on behalf of the syndicate.
Despite the fact that a credit agreement is a special case of a loan agreement, it differs significantly from the latter. Unlike a loan agreement, a credit agreement is consensual, i.e. Mutual obligations arise between the parties from the moment the agreement is signed, and the borrower can demand that the lender provide a loan. A loan agreement is always compensated. This is due to the subject composition of the loan agreement, one of the parties to which is always a credit organization whose activities are aimed at making a profit. There are also features in the procedure for granting a loan: as a rule, a loan is issued if the borrower fulfills certain conditions and is strictly targeted.
The person providing funds on credit is called the lender, and the person receiving the funds is called the borrower. Only a bank or other credit organization can act as a lender. In accordance with the Law on Banks, a credit organization is a legal entity whose main purpose is to generate profit and which, on the basis of a special permit (license) from the Bank of Russia, has the right to carry out banking operations. Credit organizations, in turn, are divided into banks and non-bank credit organizations. The difference between banks and non-bank credit organizations is that only banks can collectively carry out banking operations to attract funds from individuals and legal entities, place these funds, open and maintain bank accounts for individuals and legal entities. Non-bank credit organizations can only carry out certain banking operations, the combination of which is established by the Bank of Russia. According to the current regulations of the Bank of Russia, two types of non-bank credit organizations are distinguished: settlement and deposit-credit, and only the latter have the right to provide loans. Thus, only a bank or a non-bank depository and credit organization can act as a creditor under a loan agreement.
Unlike a loan agreement, a credit agreement in all cases must be concluded in writing. Failure to comply with this condition entails the invalidity of the loan agreement and such an agreement is void (Article 820 of the Civil Code).
From the moment the loan agreement is signed, the lender has an obligation to provide the amount specified in the agreement to the borrower. However, the agreement may contain conditions that the borrower must fulfill before receiving the loan. Such conditions may be the provision of security for the borrower’s fulfillment of obligations to repay the loan, the opening of accounts with the lender, etc. The lender may, as in the loan agreement, refuse to provide the borrower with a loan in whole or in part if there are circumstances clearly indicating that the amount provided to the borrower will not be repaid on time. The lender also has the right to refuse further lending to the borrower if the latter does not comply with the conditions for the intended use of the loan. The provision for targeted provision of credit is most often included in credit agreements, and not loan agreements. This is due to banks exercising control over the borrower’s financial flows and their receipt of income, which is the source of loan repayment.
The loan amount can be disbursed in installments; This provision of credit is called opening a line of credit. When opening a credit line, the lender either determines the total amount that will be issued to the borrower during the stipulated period (credit line with a disbursement limit), or grants the borrower the right to receive funds during the term of the loan agreement, subject to a constant debt limit. Establishing a debt limit means that the borrower has the right to receive a certain amount of money, repay the loan amount received in full or in part, and receive the previously repaid amount again during the term of the loan agreement. In other words, when setting a debt limit, a borrower can receive the amount specified in it multiple times under one loan agreement, the main thing is that his amount of debt to the creditor at any given time does not exceed the limit specified for him. A new contract is not required for this. It is also possible to simultaneously establish in a loan agreement a disbursement limit and a debt limit. In practice, loan agreements often define the period during which the borrower has the right to receive the loan amount; If, after this period, he has not used his right to receive all or part of the loan amount, he will subsequently lose this opportunity.
Not only can the lender, under certain conditions, refuse to fulfill the loan agreement, such a right is also granted to the borrower, who has the right to refuse to receive a loan by notifying the lender before the deadline for receiving it established by the agreement, unless otherwise provided by law or other legal acts. The parties may provide in the loan agreement that the borrower will not be able to refuse to receive the loan.
As a rule, one of the terms of the loan agreement is the borrower’s obligation to provide security for the fulfillment of his obligation to repay the loan. This is primarily due to the desire of credit institutions to minimize their risks in the event of borrower insolvency, as well as the requirements of the Bank of Russia to create reserves for possible losses on loans issued. The amount of reserves formed by the bank depends on the presence or absence of collateral, as well as the type of collateral. The most commonly used collateral is property pledge, surety and bank guarantee.
Despite the fact that the Civil Code and banking rules do not establish exceptions for a loan agreement regarding the possibility of determining the loan repayment period by the moment of demand, in practice, cases of granting a loan without specifying the repayment period are rare.
Taking into account that a loan agreement is always paid, one of its conditions is the amount and procedure for paying interest. The most common is monthly repayment of interest, which is due to the taxation features of credit institutions. Interest can be calculated in one of four ways: using simple interest formulas, compound interest formulas, using a fixed or floating interest rate. If the contract does not specify the method, then the simple interest formula with a fixed interest rate is used. When calculating the amount of interest, the value of the interest rate (in percent per annum) and the actual number of calendar days for which the funds were lent are taken into account. In this case, the actual number of calendar days in a year is taken as the base (365 or 366, respectively). Interest is charged by the credit institution only on the balance of the principal debt.
General characteristics of the loan agreement
Under a loan agreement, a bank or other credit organization (lender) undertakes to provide funds (loan) 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 (Art.
819 of the Civil Code of the Russian Federation).
The subject of the loan agreement is only funds in cash and non-cash form, both in rubles and in foreign currency.
The loan agreement is bilateral, since, on the one hand, the bank is obliged to provide a loan, and the borrower is obliged to repay the amount of the loan received on time and pay interest, on the other hand, the borrower has the right to demand that a loan be provided to him, and the bank receives the right to demand its return and payment percent.
Unlike a loan agreement, which is a real transaction, a loan agreement is a consensual transaction and comes into force from the moment the parties reach an agreement to issue a loan.
The loan agreement is compensated, since the payment of interest under the agreement is an essential condition. The inclusion in the loan agreement of a condition for the provision of an interest-free loan makes the transaction void.
Unless otherwise established by the rules of the Civil Code of the Russian Federation or does not follow from the essence of the loan agreement, the rules governing the loan agreement are applied to relations under the loan agreement (clause 2 of Article 819 of the Civil Code of the Russian Federation).
Parties to the loan agreement
Lenders under a loan agreement can be banks and depository and non-bank credit organizations that have the appropriate licenses from the Bank of Russia. Borrowers can be any legal entities and individuals with legal capacity and capacity.
Loan agreement form
According to Art. 820 the loan agreement must be concluded in writing. Failure to comply with the written form entails the invalidity of the loan agreement. Such an agreement is considered void. In practice, credit institutions develop standard loan agreements, which are agreements of adhesion (Article 428 of the Civil Code of the Russian Federation). The party that has acceded to the contract has the right to demand termination or modification of the contract if the contract of accession, although not contrary to the law and other legal acts, deprives this party of the rights usually granted under contracts of this type, excludes or limits the liability of the other party for violation of obligations, or contains other clearly conditions that are burdensome for the joining party, which, based on its reasonably understood interests, it would not accept if it had the opportunity to participate in determining the terms of the contract. However, if the joining party knew or should have known on what terms the contract was being concluded, the demand for termination or amendment of the contract cannot be satisfied.
If the loan agreement contains a provision on the pledge of real estate, it must be registered (Article 164 of the Civil Code of the Russian Federation). The procedure for state registration is established by Federal Law No. 122-FZ of July 21, 1997 “On state registration of rights to real estate and transactions with it.”
Civil legislation (clause 2 of Article 434 of the Civil Code of the Russian Federation), naming methods for concluding contracts in writing, indicates that a contract can also be concluded by exchanging documents via telegraph, teletype, telephone, electronic or other communication, which makes it possible to reliably establish that the document comes from the party to the contract. In practice, transactions using an electronic digital signature are often used, which meets the requirements of a simple written form.
Rights and obligations of the parties under the loan agreement
The main right of the borrower under a loan agreement is the right to demand the provision of funds to him in the amount and on the terms stipulated by the agreement.
The bank provides funds to legal entities only in a non-cash manner by crediting funds to the current or correspondent account/sub-account of the borrower client opened on the basis of a bank account agreement; to individuals – in a non-cash manner by crediting funds to the bank account of the borrower client or in cash through the bank’s cash desk. Funds in foreign currency are provided to legal entities and individuals by authorized banks in a non-cash manner.
According to the Regulation of the Bank of Russia dated August 31, 1998 No. 54-P “On the procedure for the provision (placement) of funds by credit institutions and their return (repayment)”, the provision of funds by the bank to bank clients is possible in the following ways:
1) one-time crediting of funds to bank accounts or issuing cash to a borrower - an individual;
2) opening a credit line, i.e. concluding an agreement/contract on the basis of which the client-borrower acquires the right to receive and use funds within a specified period subject to one of the following conditions:
– the total amount of funds provided to the borrower client does not exceed the maximum amount (limit) specified in the agreement (“disbursement limit”);
– during the period of validity of the agreement/contract, the amount of the borrower client’s one-time debt does not exceed the limit established by the agreement (“debt limit”).
At the same time, banks have the right to limit the amount of funds provided to the client-borrower within the framework of the credit line opened to the latter by simultaneously including both of the above conditions in the relevant agreement, as well as using any other additional conditions for these purposes.
The conditions and procedure for opening a credit line to a borrower client are determined by the parties either in a special general (framework) agreement/agreement, or directly in the agreement for the provision (placement) of funds.
Opening a credit line should also be understood as concluding an agreement for the provision of funds, the terms of which, in their economic content, differ from the terms of the agreement providing for a one-time (one-time) provision of funds to the borrower client;
3) lending by the bank to the bank account of the client-borrower (if there is insufficient or absence of funds on it) and payment of settlement documents from the bank account of the client-borrower, if the terms of the bank account agreement provide for the specified operation.
Lending by the bank to the bank account of the borrower client in the event of insufficient or absent funds on it is carried out subject to an established limit (i.e., the maximum amount for which the specified operation can be carried out) and the period during which the arising credit obligations of the bank client must be repaid.
This procedure equally applies to operations for the provision of loans by banks in the event of insufficient or absence of funds in the bank account of a client - an individual (“overdraft”), if the corresponding condition is provided for by the concluded bank account agreement or deposit agreement;
4) the bank’s participation in providing funds to the bank’s client on a syndicated (consortial) basis;
5) in other ways that do not contradict current legislation.
Funds are provided by the bank to the client on the basis of an order signed by an authorized officer of the bank, which indicates the number and date of the agreement, the amount of funds provided, the period for payment of interest and the interest rate, the term/dates (date) of repayment (return) of funds - the total amount or several amounts, if repayment will be made in parts, for loan agreements - a digital designation of the credit risk group, the value of the collateral (if there is a collateral agreement), the amount for which a bank guarantee or surety was received, a list of documents attached to the order and other necessary information.
If the parties accept additional agreements to the contract for the provision of funds on changing the terms (provision of funds in parts, return of funds, including payment of interest) and (or) interest rates and other conditions, an additional order is drawn up signed by an authorized officer of the bank to the accounting division of the bank.
In accordance with Art. 24 of the Law on Banks, creditor banks are required to create reserves for possible losses on provided funds in the manner established by the Bank of Russia in order to cover possible losses associated with the failure of borrowers to repay received funds.
Classification of loans and equivalent debts by risk groups, creation of reserves for possible losses on loans is carried out in accordance with Bank of Russia Instruction No. 254-P dated March 26, 2004 “On the procedure for credit institutions to form reserves for possible losses on loans, loans and equivalent debts to her."
According to Art. 821 of the Civil Code of the Russian Federation, the lender has the right to refuse to provide the borrower with the loan provided for in the loan agreement in whole or in part if there are circumstances clearly indicating that the amount provided to the borrower will not be repaid on time (for example: the insolvency of the debtor, holding him liable, etc.) . The lender also has the right to refuse further lending to the borrower under the agreement if the borrower violates the obligation of the intended use of the loan provided for in the loan agreement (Article 814 of the Civil Code of the Russian Federation).
In turn, the borrower has the right to refuse to receive all or part of the loan without any justification, simply due to the lack of need. He must notify the lender of this before the established deadline for granting the loan, unless otherwise provided by law or agreement. The agreement may provide for liability for refusal to receive a loan by the borrower or the possibility of refusal may be excluded altogether.
Thus, Art. 821 of the Civil Code of the Russian Federation establishes the possibility of unilateral change or termination of the contract.
The main right of the lender under a loan agreement is the right to demand repayment of the loan and receive interest from the borrower on the loan amount in the amount and in the manner specified in the agreement. If there is no provision in the agreement on the amount of interest, their amount is determined by the refinancing rate existing at the location of the lender on the day the borrower pays the loan amount or its corresponding part.
Unless otherwise agreed, interest is paid monthly until the day the loan amount is repaid.
The loan must be repaid within the period specified in the agreement. The loan amount can be repaid ahead of schedule only with the consent of the lender. The agreement may establish a fee for the lender for early repayment of the loan by the borrower.
In cases where the borrower does not repay the loan amount on time, interest is payable on this amount in the amount provided for in clause 1 of Art. 395 of the Civil Code of the Russian Federation, from the day when it should have been returned until the day it is returned to the creditor, regardless of the payment of interest provided for in paragraph 1 of Art. 809 of the Civil Code of the Russian Federation, charged for using a loan (unless otherwise provided by law or agreement).
If the agreement provides for the repayment of the loan in installments (in installments), then if the borrower violates the deadline established for repaying the next part of the loan, the lender has the right to demand early repayment of the entire remaining loan amount along with the interest due. Federal Law No. 102-FZ of July 16, 1998 “On Mortgage (Pledge of Real Estate)” establishes that foreclosure on property pledged to secure an obligation fulfilled by periodic payments is permitted if payment deadlines are violated more than three times within 12 months , even if each delay is insignificant, unless otherwise provided by the mortgage agreement.
Maltseva Victoria Valerievna
Master of MFUA,
Russia, Moscow
Email: [email protected]
Scientific adviser: Sankina Svetlana Sergeevna
Ph.D. Department of Civil Law Disciplines
MFYuA,
Russia, Moscow
Annotation. The article analyzes the loan agreement and identifies the features of its legal regulation in accordance with modern legislation.
Keywords: loan agreement, civil code, individual, borrower
Title of the article in English
Abstract. The article analyzes the credit agreement, the peculiarities of its legal regulation in line with modern legislation.
Keywords: credit agreement, the civil code, a natural person, the borrower
Currently, the loan agreement has become firmly established in our lives and plays an important role in modern society. There are many types of loan agreements: consumer loan, mortgage loan, etc.
A loan agreement is a written agreement between a commercial bank and a borrower, according to which the bank undertakes to provide a loan for an agreed amount within a certain period and for a specified fee. The borrower undertakes to use and repay the loan issued by the bank, as well as fulfill all the terms of the agreement.
Civil Code of the Russian Federation in Article 421 enshrines the principle of freedom of contract. IN According to this principle, citizens and legal entities are free to conclusion of a contract. Consequently, they independently decide whether to conclude this or that agreement, and have the right to independently friend determine the terms of the contract.
For example, a consumer loan is a loan provided by a bank for the purchase of goods (services, works) for personal, household and other non-productive needs.
In practice, commercial banks in the Russian Federation themselves determine the standard forms of loan agreements. As a rule, credit institutions use standard forms of such agreements developed by them; it is quite difficult to make changes to them. At the same time, it is necessary to highlight the conditions that must be contained in any loan agreement, regardless of its standard form.
The subject of the loan agreement is the funds provided to the borrower and subject to repayment by the latter. In Art. 140 of the Civil Code of the Russian Federation provides that legal tender, obligatory for acceptance at face value throughout the Russian Federation, is the ruble. Payments on the territory of the Russian Federation are made by cash and non-cash payments.
According to N.N. Zakharova, “when considering the subject of a loan agreement, it is necessary to take into account that only its owner can transfer money or an item into ownership.”
Regarding the form of the loan agreement, in Art. 820 of the Civil Code of the Russian Federation establishes a general imperative rule that a loan agreement must be concluded in writing. Failure to comply with the written form entails its invalidity. Such an agreement is considered void.
The timing is very important. The loan repayment period is determined by the parties independently and agreed upon in advance. The agreement specifies the term of the transaction, which defines the time limits for the use of credit funds, repayment of the loan principal and interest.
In accordance with the provisions of the Civil Code of the Russian Federation, the loan repayment period begins the next day after the calendar date from the date of conclusion of the agreement. The loan agreement must clearly define the dates for receiving and repaying the loan.
As for obligations, they must be fulfilled properly in accordance with the terms of the contract and the requirements of the law, other legal acts, and in their absence - in accordance with business customs or other usually imposed requirements. Fulfillment of an obligation consists in the performance by the creditor and debtor of actions that constitute the content of their rights and obligations.
Changes and termination of the loan agreement generally occur by mutual agreement of the parties. It is important to note that upon termination of the loan agreement, obligations cease. When it changes the obligations of the parties remain in modified form, then there are obligations considered modified or terminated with the moment of conclusion of the parties' agreement on amendment or termination of the contract, and when changing or terminating the contract in judicial procedure- With moment of entry into legal force of the court decision on change or termination of the contract.
An important issue is the guarantee as a way to ensure the fulfillment of a loan obligation and occupies a separate place among the methods of ensuring the fulfillment of loan obligations. A surety is one of the earliest ways to ensure the fulfillment of obligations, which does not lose its relevance to this day. The guarantee provides not only monetary but also non-monetary obligations.
Currently, many banks prefer this method of ensuring the fulfillment of obligations. The lender, by concluding a surety agreement, insures itself against the likelihood of the borrower’s failure to fulfill its obligations. In these civil legal relations, the loan agreement acts as the main obligation in relation to the guarantee, which in turn becomes an accessory one.
As we have already noted, this method of ensuring the fulfillment of obligations is widely used in credit relations, but many controversial situations arise when using it. There are many cases in the courts that involve failure to fulfill obligations under loan agreements.
Particular attention should be paid to the figure of the guarantor, as a special participant in civil law relations. After all, it is he who may experience adverse consequences if the debtor fails to fulfill the loan agreement, and he must be informed about this in advance.
But in practice, lenders often do not provide this information to the guarantor. So, according to N.Yu. Rasskazova, this is due to the fact that today the activities of banks are aimed only at the aggressive imposition of loans . Michurina E.A points to what, in In case of non-fulfillment of the loan agreement, the guarantor is entered along with debtor in list of unreliable banking partners.
At the moment, this practice of banks is quite common, which in the future may become the reason why a loan will be refused.
Therefore, we agree with the experts that it is necessary to include a corresponding clause in the contract, warning the guarantor about the possibility of adverse consequences for him. We believe that he should agree with them, because in this state of affairs he may practically lose the opportunity to receive a loan.
According to paragraphs 1 and 2 of Art. 363 of the Civil Code of the Russian Federation, a feature of a guarantee as a way to ensure the execution of loan agreements is also that the guarantor bears joint liability.
Thus, the creditor considers the guarantor as an ordinary debtor, because according to Art. 323 of the Civil Code of the Russian Federation, with this type of liability, the creditor has the right to demand fulfillment of obligations both from all debtors jointly and from any of them separately, both in full and in part of the debt.
The parties may also establish subsidiary liability by agreement. With this type of liability, the guarantor acts as an additional debtor. Moreover, you can turn to it only in case of insufficient funds from the main debtor.
It seems that the bearing of independent civil liability by the guarantor will perhaps act as an additional guaranteeing factor in the fulfillment of obligations, ensuring the interests of the creditor. So, a guarantee as a way to ensure the execution of loan agreements is an effective tool that increases for the bank the likelihood of the debtor fulfilling his obligations under the loan agreement. Despite the fact that this method is traditional and very widely used in the credit sector, there are many controversial issues that require improvement of legislation in this area.
In our opinion, the most popular loan agreements are consumer and mortgage. Let us analyze in more detail the first type from the loan agreement we mentioned.
Let us note right away that currently there is a problem when applying for a consumer loan in terms of banks imposing a life and health insurance agreement. Such an insurance contract can either be included in the loan amount and significantly increase the overpayment (in some cases even by more than 10%), or be a separate voluntary life and health insurance contract . The insurance agreement allows banks to ensure repayment of the loan, in including in in case of illness of the borrower, which may lead to entails getting a disability I or II groups, as well as the death of the borrower or loss of employment. In addition, the insurance risk for provides for such agreements and dismissal of the borrower connection with liquidation of the company, in which he works, or in connection with reduction of the company's staff, which is often found in modern conditions.
According to Art. 7 of the Federal Law “On Consumer Credit (Loan)”, in the process of applying for a consumer loan, banks cannot require borrowers to insure their life and health. In this case, the life and health insurance contract is not a mandatory type of insurance.
Taking into account the analysis of insurance risks under these contracts, we can conclude that it is profitable for the bank to sell the borrower an additional insurance service and receive a percentage from the partner’s insurance company for this. Insurance also allows you to ensure repayment of the loan to the bank in case of unforeseen circumstances, which are mentioned above (death of the borrower, disability, loss of job).
That is why banks impose an insurance contract, hoping that:
· the borrower is not aware of the possibility of obtaining a loan without a life and health insurance contract;
· the borrower will be misled (the draft agreement does not indicate life and health insurance, and at the stage of signing the loan agreement an insurance agreement appeared);
· the borrower is afraid of refusal to receive a loan.
The described situations have signs of invalidity of transactions, the consequences of which are indicated in the Civil Code of the Russian Federation. For example, transactions made under the influence
An analysis of the current legislation showed that administrative liability is provided for the inclusion in a contract of conditions that infringe on the rights of the consumer established by the legislation on the protection of consumer rights.
According to Article 14.8 of the Code of Administrative Offenses of the Russian Federation, inclusion in agreement on terms and conditions that infringe on consumer rights established by legislation on consumer protection, - entails the imposition of an administrative fine on officials in from one thousand to two thousand rubles; on legal entities - from ten thousand to twenty thousand rubles.
However, as practice shows, this measure is clearly not enough.
Firstly, the amount of the fine is extremely small compared to the amounts that the bank receives from concluding an additional life and health insurance contract.
Secondly, the practice of holding banks accountable is not common.
An analysis of judicial practice showed that for 2016, under Part 2 of Art. 14.8 of the Code of the Russian Federation on Administrative Offenses, only three banks were brought to justice in the Kemerovo region: OJSC Bank of Moscow, SDS-Finance, Sovcombank, and in 2015 only West Siberian Commercial Bank.
Considering the above, we agree with K.E. Rodionova , which is reasonable and it is justified to propose the following measures to reduce widespread inclusion in consumer loan agreement life insurance and health. Firstly, it is necessary to increase fines for this offense, for example officials in from one hundred thousand to one hundred fifty thousand rubles; on legal entities - from one hundred fifty thousand to three hundred thousand rubles; secondly, bank employees should carry out explanatory work with borrowers, telling them O the rights they have in including the right to refusal conclusion of the contract; thirdly, it is necessary for government bodies and the public to formulate of all citizens legal awareness, knowledge, ability to use all values created by man in legal sphere, desire to act in in accordance with them.
Literature
- 12/30/2001 N 195-FZ (as amended on 10/30/2017)// SZ RF. 2002, N 1 (part 1), art. 1.
- Civil Code of the Russian Federation (part one)" dated November 30, 1994 N 51-FZ (as amended on July 29, 2017) (as amended and supplemented, entered into force on August 6, 2017) // SZ RF. 1994, N 32, Art. 3301.
- RF. 2013. No. 51. Art. 6673.
- practical aspects- 2017 - No. 1 - p.120-122
- 1997. - P. 160.
- fate of the guarantee (in communications with 2012. No. 4. P. 127
- 2017. pp. 135-136.
- practical aspects- 2017 - No. 1 - p.122-124
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- Vostrikova A.V. Subject, form, procedure for concluding a loan agreement // Science today: theoretical and practical aspects- 2017 - No. 1 - p.120-122
- Civil Code of the Russian Federation (part one)" dated November 30, 1994 N 51-FZ (as amended on July 29, 2017) (as amended and supplemented, entered into force on August 6, 2017) // SZ RF. 1994, N 32, St. 3301
- Federal Law of December 21, 2013 No. 353-FZ (as amended on July 3, 2016) “On consumer credit (loan)" // SZ RF. 2013. No. 51. Art. 6673.
- Vostrikova A.V. Subject, form, procedure for concluding a loan agreement // Science today: theoretical and practical aspects- 2017 - No. 1 - p.120-122
- Zakharova, N.N. Loan agreement [Text] / N.N. Zakharova // M. Infra-norm. - 1997. - P. 160.
- Vostrikova A.V. Execution, modification and execution of the loan agreement // Science today: theoretical and practical aspects- 2017 - No. 1 - p.122-124
- Rasskazova N.Yu. The risk of death of the debtor and fate of the guarantee (in connection with draft resolutions of the plenums of the highest courts) // Law. 2012. No. 4. P. 127
- Michurina E.A. Some issues of using a guarantee to ensure the fulfillment of loan obligations. // Bulletin of the Saratov State Law Academy. 2015 No. 3. P. 110.
- Mazanaev M.Sh., Ismailova M.R. Some issues regarding the use of sureties in as a way to ensure the fulfillment of a loan obligation // Advances in modern science and education. 2017. T. 3. No. 1. P. 155-157.
- Rodionova K.E. Problems of the loan agreement on example of consumer credit // In collection: Results of modern scientific research and developments Collection of articles by the winners of the International Scientific and Practical Conference. Under the general editorship of G.Yu. Gulyaeva. 2017. pp. 135-136.
- Ibid.
- Code of the Russian Federation on administrative offenses" from 12/30/2001 N 195-FZ (as amended on 10/30/2017)// SZ RF. 2002, N 1 (part 1), Art. 1.
- Review of statistics [Electronic resource]. - // Access mode: http://docs.pravo.ru/search/list/?page=1&search_query=ch.2%2B14.8&tab=2