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I. Basic provisions on the conclusion, execution and termination of the loan agreement
I. Basic provisions on the conclusion, execution and termination of the loan agreement
The loan agreement is one of the most common agreements in business practice. In accordance with paragraph 1 of Article 807 of the Civil Code of the Russian Federation, under a loan agreement, one party (the lender) transfers money or other things defined by generic characteristics to the ownership of the other party (the borrower), and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal amount of other things he received of the same kind and quality. The loan agreement is considered concluded from the moment of transfer of money or other things.
It should be noted that a loan agreement will not be considered a transaction under which the lender transfers certain things to the borrower, and the loan is repaid in cash; just as it is not allowed to return the loan received in money by things. That is, if, for example, if the "lender" transferred the goods, such as seeds, to another party (the borrower), and he undertakes to repay the loan in money, then such an agreement will qualify as a delivery agreement with a deferred payment.
Disputes over the execution of a loan agreement, challenging it, declaring it null or void are quite common in judicial practice, while the largest share of disputes falls on claims for improper performance of obligations to repay a loan, contesting a loan due to its lack of money.
This review considers only some categories of disputes related to the conclusion and execution of a loan agreement.
Disputes on termination of the loan agreement
The loan agreement can be terminated both by agreement of the parties, and upon unilateral refusal of one of the parties, i.e. initiated by the borrower or lender. As a rule, the initiative for early termination of the contract, as the analysis of judicial practice shows, comes from the lender.
The grounds for early termination of the loan agreement may be provided both by law (Article 450 of the Civil Code of the Russian Federation) and by agreement of the parties. The most common reason for terminating a loan agreement is a violation by the borrower of the obligation to pay interest on the loan, repay the principal debt under the loan agreement. Violation of obligations to return interest, the loan amount is recognized by the courts as a material breach of the contract, and the courts satisfy the requirements of the lender, referring to subparagraph 1, paragraph 2, article 450 of the Civil Code of the Russian Federation. First of all, the duration of non-fulfillment of the obligation, the amount of overdue payments, is taken into account. When considering cases on termination of a loan agreement, the following circumstances shall be established:
- on the conclusion and reality of the loan agreement between the parties, i.e. whether the borrowed funds were actually transferred to the borrower, and under what conditions;
Whether the borrower fulfilled its obligations to pay interest and (or) repay the principal amount;
Whether the committed violations are significant, based on the duration and amount of delay in performance.
The second most common ground for terminating a loan agreement is the bankruptcy of the lender. Bankruptcy in itself is not grounds for terminating a loan agreement, only if the execution of the transaction does not prevent the restoration of the debtor's solvency, for example, when the amount of debt under the loan agreement exceeds the amount of the bankrupt's debts or occupies a significant share (for more details, see the corresponding paragraph of the second section of the review).
Upon termination of the loan agreement, as explained in paragraph 60 of the joint Decree of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8 "On Certain Issues Related to the Application of Part One of the Civil Code of the Russian Federation", the dispute on changing or terminating the agreement may be considered by the court on the merits only if the plaintiff presents evidence confirming that he has taken measures to resolve the dispute with the defendant, provided for in paragraph 2 of Article 452 of the Civil Code of the Russian Federation. Those. it is required to send an application for termination of the agreement with the requirement for voluntary repayment of debt under the loan agreement; applying to the court is possible only after receiving a refusal from the other party to the proposal to change or terminate the contract or failure to receive a response within the period specified in the proposal or established by law or the contract, and in its absence - within thirty days.
Important: the requirement to terminate the contract must be formulated unambiguously, clearly, without allowing different interpretations, i.e. the text of the demand must clearly indicate the will of the party to terminate the contract. Claim for early repayment of debt, incl. the entire loan amount, interest, is not equal to the requirement for early termination of the contract and is not a basis for terminating the debtor's obligations under the contract. The lender (creditor) has the right to demand payment of all interest, penalties, etc. arising from the nature of the obligation. ().
Consequences of non-fulfillment of the condition on the return of the loan within the established time limits
The borrower is obliged to fulfill the terms of the loan agreement on the return of borrowed funds within the period specified by the parties, or, in the absence of an agreement on the term or if the return is determined by the moment of demand, return the loan within thirty days from the date the lender makes a request for this, unless otherwise provided by the agreement.
Important: the loan agreement must contain an agreed condition on the term and procedure for repaying the loan. If it is planned to repay the loan in installments, then it is necessary to agree on the procedure for repaying the loan, for example, monthly, or quarterly, or once a year, as well as specific terms, for example, monthly until the 20th day of each month. Otherwise, even if there is a condition for repayment in installments, the borrower can return the loan amount only at the end of the term for which the loan was issued.
The loan repayment period must be clearly defined, but if the parties did not indicate it, but the agreement contains an indication of the end date of the agreement, then such a date is also considered the period in which the borrower must repay the loan.
In the absence of a condition on the repayment period, the borrower is obliged to repay the loan at the request of the lender. At the same time, the lender sends a request for the return of the loan, while from the text of such a request it should be clearly seen that the lender requires the return of borrowed funds, indicating the details of the loan agreement. Note that the condition on the return of the loan at the time of claim by the lender is unprofitable for the borrower, because the right to demand repayment of the loan essentially arises from the moment the borrower receives the borrowed funds.
In case of delay in fulfilling the conditions for the return of the loan, incl. in case of return with violation of terms, the lender has the right to demand payment of interest for the use of other people's funds. Paragraph 1 of Article 811 of the Civil Code of the Russian Federation provides for the possibility of collecting interest on the loan amount in the amount provided for in paragraph 1 of Article 395 of the Civil Code of the Russian Federation, from the day it was supposed to be returned until the day it was returned to the lender, regardless of the payment of interest charged under the agreement loan in accordance with clause 1 of article 809 of the Civil Code of the Russian Federation.
This interest is a payment for the use of funds and is payable by the debtor in accordance with the rules on the principal monetary debt. At the same time, interest under clause 1 of Article 811 of the Civil Code of the Russian Federation is accrued on the amount of the principal debt on the loan, excluding interest, unless otherwise provided by the loan agreement. (Clause 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation N 13, the Plenum of the Supreme Arbitration Court of the Russian Federation N 14 dated 08.10.98 "On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people's money" - hereinafter referred to as Resolution N 13/14).
The loan agreement may provide for the payment of increased interest (at a higher rate) for the use of borrowed funds in case of delay in repayment of the loan. At the same time, since the collection of increased interest is a measure of the borrower's liability for improper performance of its obligations under the loan agreement, the court, on the basis of a reasoned application of the debtor, to apply the provisions of Article 333 of the Civil Code of the Russian Federation and reduce the amount of accrued and recoverable interest. (clause 13 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 13, 2011 N 147 "Review of judicial practice in resolving disputes related to the application of the provisions of the Civil Code of the Russian Federation on a loan agreement").
Also, the lender has the right to demand payment of a penalty for non-fulfillment of the terms of the loan agreement, but only if the collection of the penalty is provided for by the loan agreement.
If there are conditions in the agreement on the accrual of increased interest in case of delay in repaying the debt, as well as a penalty for the same violation (with the exception of a penalty), the lender has the right to demand the application of one of the measures of responsibility, without proving the fact and amount of losses incurred by him in the event of non-fulfillment of the monetary obligation . (clause 15 of Resolution No. 13/14).
If a pledge agreement was concluded by the parties as security for the fulfillment of an obligation, then the lender has the right to demand foreclosure on the debtor's property. In this case, the court, at the request of the debtor, may postpone the sale of the pledged property. At the same time, such a deposit does not violate the rights of the borrower, because is a measure to protect the rights of both the borrower and the lender (see Ruling of the Constitutional Court of the Russian Federation of January 15, 2009 N 243-О-О). The postponement does not release the debtor from the obligation to compensate the creditor's losses that have increased during the delay, the interest due to the creditor and the penalty.
Important: according to the clarifications contained in clause 8 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 13, 2011 N 147 "Review of judicial practice in resolving disputes related to the application of the provisions of the Civil Code of the Russian Federation on a loan agreement", the requirement for early repayment of borrowed funds in connection with violation by the borrower of its obligations is aimed at early receipt of performance from the debtor, and not at the termination of obligations under the loan agreement, therefore it can be presented independently without filing a request to terminate the loan agreement.
Contestation of the loan agreement, its recognition as not concluded and invalid
The loan agreement is a real agreement, i.e. is considered concluded from the moment of actual transfer of borrowed funds from the lender to the borrower. In itself, the signing by the parties of the loan agreement without the actual transfer of the subject of the loan does not entail the validity of the loan agreement, therefore, in accordance with paragraph 1 of Article 812 of the Civil Code of the Russian Federation, the borrower has the right to challenge the agreement for lack of money, i.e. on the grounds that he did not receive borrowed funds at all or received in a smaller amount than stipulated in the loan agreement. If it is established that a smaller amount of borrowed funds was actually transferred to the borrower, then the loan agreement is considered concluded for the actually transferred amount (amount) of borrowed funds.
Important: the transfer of borrowed funds does not have to be carried out directly to the borrower; at his direction or with his consent, the borrowed funds can be transferred to a third party, as a rule, in fulfillment of the borrower's obligations to this person. Such consent or indication may be expressed directly in the loan agreement or confirmed in another way, incl. through the behavior of the borrower (for example, in the absence of objections from the borrower, the presence of the borrower's obligations to the third party who received the funds, the fulfillment of the terms of the loan agreement to repay the loan by the borrower, etc.). When resolving disputes, courts always evaluate the entire set of written evidence, as well as the behavior of all parties, the obligations between them.
An analysis of judicial practice shows that the lack of money in a loan agreement is also possible if the lender fulfills in good faith the obligation to transfer borrowed funds to the borrower. Lack of money can occur when a non-cash transfer of borrowed funds to the borrower's account through the fault of the bank. The absence of funds on the correspondent account of the bank and the impossibility of actually transferring funds by it will serve as the basis for recognizing the loan agreement as non-monetary, while the accounts of both the borrower and the lender may reflect the movement of funds, which in fact will be only an intra-bank entry. Recognition of the lack of money of the agreement in this case is possible because the loan agreement requires a real transfer of borrowed funds, in which the borrower can really really use them.
It should be noted that the burden of proving lack of money lies with the borrower, and the court proceeds from the presumption of good faith of the parties, i.e. it is considered that the lender has fulfilled its obligation to transfer borrowed funds in the amount agreed by the parties. The borrower, in refutation of this, may provide any evidence, taking into account the requirements of paragraph 2 of article 812 of the Civil Code of the Russian Federation. As a rule, in most cases, a written form of a loan agreement is required, and therefore, evidence of lack of money by testimony is not allowed, except in cases where the agreement was concluded under the influence of fraud, violence, threat, malicious agreement between the representative of the borrower and the lender, or a combination of difficult circumstances. But this does not mean a complete ban on providing testimonies, and in cases other than those listed above, the court may take into account the testimonies to establish the true nature of the relationship between the parties, the circumstances of the case, etc., testimonies in this case act in as indirect.
As evidence, as a rule, written evidence is required, incl. documents of accounting and tax reporting, statements of movements of funds on accounts, etc. For example, the absence of a reflection of the issuance of a loan in the financial statements of the lender, combined with the failure to reflect the loan and the borrower, may most likely indicate that the loan agreement is cashless. Meanwhile, not always the absence of information about the loan according to accounting and tax reporting can be taken into account as evidence of the lack of money in the loan. Thus, the failure by the borrower to reflect the data on the loan in the accounting or tax reporting, if there are documents confirming the receipt of the loan by the lender, does not indicate that the loan is cashless, but indicates a violation by the borrower of the relevant requirements of the accounting legislation. However, if the borrower disputes the named documents and there are grounds for doubting their authenticity, the court takes into account the absence of data on the loan in the accounting or tax reporting.
Violation of the rules for reflecting the issuance of a loan in the financial statements on the part of the lender with a high degree of probability will be accepted by the court as proof of the lack of money in the loan, because. the court proceeds from the motives of the profitability of the correct and timely reflection by the lender of the issuance of a loan in case of its reality.
The most common are such disputes over claims for inclusion in the register of creditors' claims. In such disputes, the courts are guided by the explanations given in paragraph 26 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 22, 2012 N 35 "On Certain Procedural Issues Related to the Consideration of Bankruptcy Cases": if the requirements of the applicant (creditor) are confirmed only by the debtor's receipt or receipt for the credit cash order, the court must establish whether the financial position of the creditor (taking into account his income) to provide the debtor with the appropriate funds, whether there is satisfactory information in the case about how the funds received were spent by the debtor, whether the receipt of these funds was reflected in the accounting and tax accounting and reporting, etc. In this case, the failure to reflect the received loan in the reporting will not play a decisive role.
An approach similar to the one described above in proving the lack of money of a loan can be applied in other cases.
Important: the recognition of a loan agreement as not concluded due to its lack of money entails the emergence of the borrower's right to demand the return of unjust enrichment if he previously transferred funds as performance under a loan agreement that was recognized as not concluded.
Note that the recognition of the contract as not concluded due to its lack of money is the most common reason, but not the only one. So, the contract can be recognized as not concluded if the parties do not agree on the essential terms of the contract, namely, within the meaning of Article 807 of the Civil Code of the Russian Federation - the subject of the contract and the conditions for repaying the loan. The loan agreement must clearly define what exactly and in what quantity acts as the subject of the loan, i.e. transferred to the borrower by the lender and subject to return. A condition on the repayment of transferred borrowed funds should also be included in the loan agreement.
The loan agreement can also be declared invalid, while, unlike the recognition of the agreement as not concluded, it is not required to prove the lack of money of the agreement, the execution of the loan agreement can be quite real, i.e. the parties may transfer to each other borrowed funds in pursuance of the concluded agreement, this will not affect the validity or invalidity of the loan agreement.
A loan agreement can be invalidated on the same grounds as other transactions (the grounds for invalidating transactions are established by paragraph 2 of Chapter 9 of the Civil Code of the Russian Federation), but the most common grounds, as an analysis of judicial practice has shown, is the recognition of an agreement as an imaginary or sham transaction. Pretend transactions are intended to cover up another transaction, they do not correspond by their nature to borrowed obligations. For example, a loan agreement in the form of a receipt issued as a guarantee for the performance of work or the provision of services will be recognized as a sham transaction, i.e. the loan agreement is invalid in this case. To recognize a loan agreement as a sham transaction, it is necessary to prove the true nature of the relationship between the parties, the circumstances of the transaction, how realistically it was executed, etc.
An imaginary transaction is aimed at achieving other goals that are different from the goals of a loan agreement, for example, in order to take possession of a property that is pledged as security for performance allegedly under a loan agreement. When proving a loan agreement by an imaginary transaction, an important role will be played by the reality of the transfer of borrowed funds to the borrower, the use of the loan by the borrower, the reflection of the loan according to the accounting records of the lender and the borrower, etc. The absence of all of the above with a high degree of probability indicates the imaginary nature of the transaction, especially if the lender has become the property of the collateral.
It should be noted that, in contrast to challenging a loan due to its lack of money, in disputes over the recognition of a loan agreement as invalid due to the sham or pretense of a transaction, it is allowed to use witness testimony as evidence. Testimony can be used to establish the true nature of the relationship between the parties.
The second ground for recognizing a loan agreement as invalid is its commission in order to cause property damage to the person's creditors, the person himself, especially if there are signs of the person's insolvency at the time or on the eve of the transaction. At the same time, the person disputing the transaction must prove that real damage is actually caused to creditors with the conclusion of the loan agreement and its execution, for example, replacing the obligation to pay debt under the agreement with a novation for a loan obligation may prevent the return of accounts payable that the lender has formed to third parties. Also subject to proof is the presence of signs of a person's insolvency, for example, when the value of his assets is less than accounts payable. It is important that such transactions are often made between interested parties.
Failure to comply with the written form of the agreement, contrary to the requirements of Article 808 of the Civil Code of the Russian Federation, even if the actual transfer of borrowed funds, will also serve as a basis for recognizing the loan agreement as invalid.
The recognition of the loan agreement as invalid entails the emergence of the right to demand the application of the consequences of the invalidity of the transaction, in particular, the return of the transferred funds as unjust enrichment. At the same time, it is necessary to prove the reality of the transfer (provision) of such funds.
Target Loan
The principle of freedom of contract is reflected in the possibility to conclude a target loan agreement, i.e. when borrowed funds are issued to a borrower to achieve a specific purpose. At the same time, an agreement on a target loan based on the meaning of Article 808, paragraph 1 of Article 814 of the Civil Code of the Russian Federation must be reached in writing, i.e. the condition of the intended purpose is necessarily included in the loan agreement. At the same time, the legislator does not put forward requirements for the formulation of conditions, the main condition is that it should clearly follow from the text of the agreement that the borrowed funds are issued for use for a specific purpose. If a loan agreement between the parties is executed by receipt, then it is enough to indicate in the receipt that the loan is targeted and the purpose of the loan.
An analysis of judicial practice shows that the purpose of a loan can be practically any, if in itself it does not contradict the requirements of the law. It is permissible to issue a loan for the purchase of property, construction, financing of training costs, etc., while it is possible to include requirements, for example, that the borrower must work for a certain employer for a specified period (but it is not allowed to restrict the right to terminate an employment contract, put forward conditions for personal life of the borrower, etc.).
At the same time, the purpose of the loan, if certain parameters of its fulfillment are critical for the borrower, it is recommended to formulate as precisely as possible, indicating the unique characteristics of the purpose. For example, if a loan is issued specifically for the purchase of an apartment, then important characteristics of the apartment are indicated (for example, area, cost limits, district, etc.). Otherwise, when using general formulations of the goal, the court will proceed from a systematic interpretation of the loan agreement, taking into account the general direction and nature of the goal. So, in the above case, in the absence of unique characteristics, the court will most likely consider the loan to be used to purchase a separate house or to finance the construction of a cottage, because the general direction of the goal is to improve the living conditions of the borrower.
It is imperative to indicate in the contract the terms for the implementation of the condition on the intended purpose of the loan, for example, during what time from the date of receipt of the loan an apartment should be purchased or higher education will begin, etc. Otherwise, the borrower will have the opportunity to avoid the intended use of the loan for a long time.
If it is possible to choose the purposes of using the loan, i.e. the existence of alternative goals in the contract, it is desirable to provide for a condition on the forms and procedure for agreeing on the purpose of using the loan with the lender, otherwise the court will consider it lawful for the borrower to independently choose the goal without the consent of the lender.
Meanwhile, the absence of any clear, specific provisions on the procedure for using borrowed funds to achieve the goal does not entail the release of the borrower from the obligation to adhere to the condition of the target loan; in this case, the meaning has a general meaning, the direction of the goal. So, if a loan is issued for advanced training, obtaining professional knowledge without formulating specific requirements-conditions in order to achieve the goal, then the borrower independently chooses the forms, methods, ways to achieve the goal.
If the contract provides for the agreement on the method of achieving the goal or the choice of goal, then such agreement is mandatory. At the same time, it is desirable to provide for the agreement procedure in the contract; the absence of a clearly defined procedure for approval does not release the borrower from the obligation to agree, but the lender is also deprived of the opportunity to require specific forms of approval (for example, only in writing).
Violation of the condition on the intended use of borrowed funds is an independent basis for early termination of the loan agreement, however, in practice, "clean" disputes about the misuse of funds in relation to other types of disputes under loan agreements are rare, because. often misuse of borrowed funds is combined with failure to fulfill the obligation to repay the loan on time. In this case, the lender may demand payment of a penalty for the misuse of borrowed funds, if this is provided for by the loan agreement.
The lender has the right to control the use of borrowed funds, while it is desirable to stipulate in the loan agreement the forms, procedure and terms for exercising control; however, the absence of these conditions in the loan agreement does not relieve the borrower from the obligation to provide the lender with the opportunity to exercise control over the expenditure of funds. An analysis of judicial practice shows that the courts in this case, as a rule, take the side of the lender, since Based on the meaning of clause 2 of Article 814 of the Civil Code of the Russian Federation, the legislation does not establish specific forms and methods for exercising control, but it establishes the obligation of the borrower to provide a fundamental opportunity to exercise control over the spending of funds. Meanwhile, the lender must understand that in the absence of an agreement on the control procedure, the emergence of disputes over the forms and terms of control is almost inevitable, and it is impossible to predict the outcome of a litigation, because what matters will be the behavior of the parties to the contract, the circumstances of the case, etc.
An obstacle on the part of the borrower in exercising control over the use of borrowed funds will be an independent basis for early termination of the loan agreement. An obstacle may be expressed in the late provision of supporting documents or failure to submit documents, incl. incomplete provision.
At the same time, if it is provided for by the loan agreement, the lender may demand payment of a penalty for obstruction in the exercise of control.
Loss of collateral for the borrower's obligations
As security for the fulfillment of the obligations of the borrower, the parties may provide for the provision by the borrower of a security determined by an agreement between them. As a rule, the most common ways are surety and pledge.
The lender, in accordance with Article 813 of the Civil Code of the Russian Federation, has the right to demand early repayment of the loan, payment of interest in the event that the borrower evades obligations to secure the fulfillment of obligations under the loan agreement, loss of collateral, or threat of loss.
An analysis of judicial practice shows that disputes about the loss of collateral or the threat of loss are the most common: for example, damage to pledged property, a decrease in its value, changes in quantity, etc. may serve as a basis for the lender's demand for early repayment of the loan. For example, a decrease in the warehouse of goods in circulation below the quantity (value) specified by the pledge agreement, the loss of ownership of the property or the encumbrance of the rights of third parties on the pledged property may be regarded either as a loss of security or a threat of loss.
In the case of a suretyship, a change in the financial condition of the guarantor may be considered the loss of collateral, for example, the introduction of a monitoring procedure in relation to the guarantor or declaring him bankrupt may indicate a deterioration in the conditions of the collateral and be the basis for the creditor to claim the principal debtor for early fulfillment of the secured obligation to repay the loan amount ( 46 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 12, 2012 N 42 "On some issues of resolving disputes related to surety"). By analogy, this also includes loss of ability to work by a guarantor - an individual, the loss of registration as an individual entrepreneur, the onset of disability, etc. The main criterion is the potential threat of non-fulfillment by the guarantor of its obligations in the event that the borrower violates the terms of the loan agreement on the return of the loan.
Also, the lender has the right to demand early repayment of the loan if the borrower fails to fulfill its obligations to provide security for the performance of obligations under the loan agreement. So, for example, evading the conclusion of a pledge agreement, or the inability to pledge property, regardless of the obstacle, will be the basis for filing a claim for early repayment of the loan.
When resolving the issue of the possibility of early recovery of a loan under Article 813 of the Civil Code of the Russian Federation, the fulfillment by the borrower of obligations to repay the loan does not play a role: even with proper timely performance, the lender may demand early repayment of the loan, because. loss of collateral, threat of loss, deterioration of conditions for collateral or failure to fulfill obligations to provide collateral are independent grounds for collecting debt under a loan agreement, because change the terms of the loan, could potentially lead to a violation of the rights of the lender to repay the loan.
II. Conclusions of the courts on controversial issues during the conclusion, execution and termination of the loan agreement
Contestation of the loan agreement and recognition of the loan agreement as not concluded
1. The loan agreement is a real agreement and is considered concluded for the actually transferred amount of borrowed funds, even if a different amount is indicated in the loan agreement. If the transfer of borrowed funds did not take place, then the contract is considered not concluded.
1. The loan agreement is a real agreement and is considered concluded for the actually transferred amount of borrowed funds, even if a different amount is indicated in the loan agreement. If the transfer of borrowed funds did not take place, then the contract is considered not concluded.
1.1. Appeal ruling of the Supreme Court of the Republic of Tatarstan dated March 26, 2015 in case N 33-4299/2015
Claim:
The main ones are to collect the debt under the loan agreement.
Counter - recognize the loan agreement as non-concluded due to lack of money.
The court's decision:
Court position:
The Claimant refers to the fact that a loan agreement was concluded between him and the Respondent, funds were transferred to the borrower for personal needs and for training in order to improve qualifications and acquire new professional skills. The Respondent was in an employment relationship with the Claimant, the employment contract was terminated, the Claimant requires the recovery of the debt. A receipt was provided as evidence of the actual transfer of funds. Meanwhile, the court considered the receipt insufficient evidence, t.to. from the literal content of the text of the personal receipt it follows that the Respondent received the funds without specifying any details of the legal entity. In accordance with the requirements of Russian legislation, data on the issued loan must be reflected in accounting documents, incl. be confirmed by primary accounting documents, but the Claimant's accounting documents do not contain any information about the provision of a loan. In these circumstances, the court found the loan agreement non-monetary.
1.2. Decree of the Arbitration Court of the Volga-Vyatka District dated October 7, 2014 in case N A29-6477 / 2013
Claim:
The court's decision:
Court position:
A loan agreement for the amount of 6 million rubles was concluded between LLC and the Respondent. Subsequently, LLC, under an assignment agreement, transferred the right to claim under a loan agreement to the Claimant. As follows from the case file and is not disputed by the parties, the Respondent actually received only 4 million rubles, but did not fulfill its obligations to repay the loan. In accordance with paragraph 1 of article 812 of the Civil Code of the Russian Federation the borrower has the right to challenge the loan agreement due to its lack of money, proving that the money or other things were not actually received by him from the lender or received in a smaller amount than specified in the contract. Because the loan agreement is a real agreement, it is considered concluded for the amount of actually transferred borrowed funds, i.e. for 4 million rubles. From the moment the funds are transferred and received by the borrower, the latter has an obligation to repay the loan in accordance with the terms of the agreement, therefore, the Respondent incorrectly believed that the obligation to return arises only if the entire pre-agreed amount of 6 million rubles is transferred. Since the violation of obligations under the contract is reliably established, the claims are subject to satisfaction.
1.3. Decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated July 28, 2014 in case N A28-12059 / 2012
Claim:
Terminate the loan agreement, collect the debt under the agreement, interest for the use of other people's money.
The court's decision:
The claims were denied.
Court position:
The parties signed a loan agreement, the Claimant requires the collection of debt under the agreement. The Respondent denies receiving funds from the Claimant, the fact of the transfer of funds in pursuance of the contract is not confirmed by the primary accounting documents. The financial statements of the Respondent do not contain information about the receipt of a loan in the amount of 1,000,000 rubles from the Claimant and data on the use of these funds, and the Claimant did not provide the court with evidence of the possibility, due to its financial condition, to provide the defendant under the disputed loan agreement with 1,000,000 rubles. The reference to the terms of the agreement, according to which the signing of the agreement confirms the receipt of borrowed funds, cannot serve as reliable and sufficient evidence in the case. Since no written evidence of the transfer of borrowed funds was provided, taking into account the judicial acts previously adopted by the courts of general jurisdiction, by which the loan agreements were recognized as not concluded, the court dismissed the claims.
1.4. Resolution of the Arbitration Court of the West Siberian District dated October 29, 2014 in case N A67-479 / 2013
Claim:
On the recovery of debt under loan agreements, interest for the use of other people's funds, interest for the delay in repaying a loan.
The counterclaim is to recognize the loan agreement as not concluded due to its lack of money.
The court's decision:
The loan agreement was recognized as not concluded due to its lack of money.
Court position:
A loan agreement was concluded between an individual entrepreneur (lender) and an LLC, in support of this, a loan agreement, an act of transferring the loan amount, and a cash order were submitted to the court. The individual entrepreneur assigned the right to claim under the loan agreement to the Company. Meanwhile, the court considered the actual transfer of funds to the borrower unproven: on the contract, the act bears an imprint of the seal of the LLC, destroyed in accordance with the act of destroying the seal in connection with the change of the abbreviated name of the LLC; a sufficiently large amount of the loan was not reflected as the received amount in the accounting documents of the Company. In addition, the courts concluded that there was no evidence in the case file that would indicate that the lender had funds in the amount specified in the disputed loan agreement.
1.5. Decree of the Arbitration Court of the Volga District dated December 4, 2014 N F06-17746/2013 in case N A06-2321/2013
Stated requirements:
On the inclusion of claims in the register of creditors' claims.
The court's decision:
Deny claims.
Court position:
The applicant claims that the debtor (bankrupt) has a debt under the loan agreement, asks to include the claim in the register of creditors' claims. However, the court was not provided with documents confirming the transfer of funds to the debtor: such documents as a balance sheet, a journal-order for account 66 on subconto, a financial analysis compiled by an interim manager, which reflect the debtor's accounts payable to the Applicant, cannot serve as admissible proof of reality said loan agreement; the submitted debt reconciliation act is also not a primary accounting document. The reconciliation act does not contain references to primary accounting documents that form the debt reflected in it; and therefore, the act is not accepted as evidence of the actual transfer of borrowed funds. In addition, the court was not provided with evidence of the applicant's financial ability to provide the specified loan amount to the borrower, account statements and other documents do not reflect the movement of the said amounts.
1.6. Resolution of the Arbitration Court of the North-Western District of 08/07/2014 in case N A56-4334 / 2013
Claim:
The main ones are to collect debts under loan agreements, interest, penalties.
Counter - to recognize loan agreements as non-concluded due to their lack of money.
The court's decision:
The main claim was denied, the counter claim was satisfied.
Court position:
The Claimant alleges that between him and the Respondent, loan agreements were concluded, under which the Respondent does not fulfill its obligations. In confirmation, the Claimant provided bilateral acts of receipt of funds, cash warrants. However, according to the conclusion of the examination, the documents provided do not correspond to the dates of the actual production of these documents, i.e. falsified, made "retroactively". The conclusions of the examination are also confirmed by the testimonies. In addition, the presented accounting documents and statements of the "lender" and "borrower" do not reflect operations related to the provision and receipt of loans. All this together testifies to the lack of money in loan agreements.
1.7. Decision of the Federal Antimonopoly Service of the Central District dated 06/23/2014 in case N A14-3790 / 2013
Claim:
The main ones are to collect debts under loan agreements, interest for using a loan, other people's money.
Counter - to recognize the loan agreements as non-concluded due to their lack of money, to recognize the receipt as invalid.
The court's decision:
The counterclaim was denied, the main claims were partially satisfied.
Court position:
A loan agreement was concluded between the plaintiff and the defendant; in support of his claims, the plaintiff provided a receipt. The defendant filed a counterclaim, in which he asks to recognize the loan agreement as not concluded due to lack of money, considers the receipt falsified. However, as the examination showed, the signatures on the receipt and in the loan agreement were made by the defendant himself, but it is not possible to establish the prescription for putting down the signature. Considering all of the above, the court found no grounds for recognizing the contract as cashless, t.to. The defendant signed his own signatures on the receipt and the loan agreement.
1.8. Decree of the Federal Antimonopoly Service of the Urals District dated March 4, 2013 N F09-1182/13 in case N A76-9088/2012
Claim:
Claim unjust enrichment.
The court's decision:
The claims have been satisfied.
Court position:
An interest-free loan agreement was concluded between the parties, according to which the lender (defendant) undertook to transfer the loan amount to the bank account of the plaintiff (borrower), and the borrower - to repay the loan amount within the prescribed period. In pursuance of the terms of the agreement, the lender transferred the funds by payment order to the borrower's account. At the same time, an agreement was concluded between the bank and the plaintiff to open a credit line with a debt limit, in pursuance of the agreement, the plaintiff transferred money to the bank, and the plaintiff also transferred money to the defendant. Meanwhile, the bank's license was revoked by order of the Central Bank of the Russian Federation, and the bank was later declared insolvent (bankrupt).
The plaintiff, taking into account the above circumstances, considers the loan agreement to be non-monetary, and the funds transferred by him to the defendant as unjust enrichment. The court agreed with the plaintiff's arguments, t.to. the case file contains evidence that the transfer of funds by the lender to the plaintiff's settlement account was an intra-bank transaction that did not lead to a real transfer of funds from the defendant to the plaintiff due to a lack of funds on the bank's correspondent account, as evidenced by the opening by the bank of a file cabinet to account N 47418 "Funds debited from customer accounts, but not posted to the correspondent account of a credit institution due to insufficient funds", indicating the actual insolvency of the bank. The non-cash funds that were on the settlement account of the defendant (lender) by their legal nature represent the rights of the account holder to claim against the bank. The demand of the lender to transfer funds to the settlement account of the plaintiff (borrower) was not actually fulfilled by the bank. Thus, due to the lack of real money on the Bank's accounts, the loan amount under the agreement was not transferred to the borrower.
Thus, the loan agreement is considered not concluded due to its lack of money, and the funds transferred by the plaintiff under the loan agreement must be recovered as unjust enrichment.
2. The transfer of funds to third parties, and not to the borrower, cannot serve as a basis for recognizing the loan as non-monetary, if such transfer took place at the direction of the borrower or with his consent.
2. The transfer of funds to third parties, and not to the borrower, cannot serve as a basis for recognizing the loan as non-monetary, if such transfer took place at the direction of the borrower or with his consent.
The condition of the loan agreement, which the law refers to as essential, is its subject matter. Other conditions depend on the subject composition of counterparties and the nature of the relationship. When preparing a transaction, check the contents of the document.
When counterparties make a loan transaction, the lender transfers money or other things to the borrower, and the borrower undertakes to return the transferred in equal quantity or quality (). For loan agreements, as well as for others, there are essential conditions. First of all, such a condition is the subject of the agreement (Article 432 of the Civil Code of the Russian Federation). In addition to the subject matter, the law classifies as essential those conditions that the counterparties themselves want to recognize as such (paragraph 2, clause 1, article 432 of the Civil Code of the Russian Federation). In practice, the parties to the loan agreement recognize the mandatory conditions:
- About the amount of interest that the borrower must pay.
- About the purpose of the loan.
- About the terms and procedure for the return. The courts also consider it mandatory to indicate the period by which the borrower must return what he received ().
The rules for concluding loan agreements are present in Chapter 42 of the Civil Code of the Russian Federation. In addition, consider the requirements of other laws - in particular, in relation to transactions with individuals. For example, the types of agreements with citizens are:
- loan agreement with a bank
- deal with a microfinance institution,
- pawnshop deal,
- loans between individuals.
If a loan agreement is concluded with an individual, check not only the essential and additional conditions for the Civil Code of the Russian Federation, but also the compliance of the document with the requirements of other laws.
Let us consider in more detail what conditions to check when preparing an agreement and what specific features to take into account.
Indicate in the contract the purpose of the loan of funds or other property, as well as the repayment period
Article 432 of the Civil Code of the Russian Federation refers to what is attributed to the essential conditions. These conditions always include the subject of the transaction. The law indicates the need to agree on other conditions, or one of the parties may require this. When it comes to a loan agreement, as a rule, they stipulate the amount of interest, the procedure for repaying the debt and the purpose of the loan.
In the case of a loan transaction, its subject is the lender's obligation to transfer one or another property to the borrower (clause 1, article 807 of the Civil Code of the Russian Federation). Most often, the contract is concluded in relation to cash; things or securities can also appear as a subject. When agreeing on the essential terms of the loan agreement:
- check the size of the amount if the subject of the transaction is cash. The amount must be expressed in rubles;
- write in the text of the document the number of things, if things are provided under the contract;
- indicate the type of securities, as well as their number, if the transaction is about securities.
A foreign currency loan is allowed if:
- one of the parties to the agreement is a non-resident of the Russian Federation (Articles 6, 10 of the Law of December 10, 2003 No. 173-FZ), or
- counterparties - credit institutions (banks) that have the ability to perform foreign exchange transactions on the basis of a license from the Central Bank of the Russian Federation (Part 2, Article 9 of Law No. 173, Ordinance of the Central Bank of the Russian Federation of April 28, 2004 No. 1425-U0, or
- a bank that has a license from the Central Bank of the Russian Federation for foreign exchange transactions concludes a deal with a resident of the Russian Federation (part 3 of article 9 of law No. 173).
You can register the amount in rubles and its equivalent in foreign currency. Then you need to define the recalculation scheme at the rate:
- Specify a fixed amount.
- Link the recalculation to the exchange rate on a specific date.
Guest, get acquainted -!
In the Civil Code of the Russian Federation, its subject was called an essential condition for a loan agreement. In addition, the parties have the right to regard the interest clause as mandatory. Including, if we are talking about a loan without paying interest. Interest can be set:
- as a fixed amount.
- With a floating rate. Changes in the rate are tied to a change in the indicator, which the counterparty specifically stipulates.
- In a combined or other way, which is fixed in the agreement (Article 809 of the Civil Code of the Russian Federation).
Also in this condition, a scheme for paying interest is prescribed.
Note that:
- If the amount of interest is not indicated, they are equated to the key rate of the Central Bank of the Russian Federation (clause 1 of article 808 of the Civil Code).
- If the text does not contain a condition on the interest-free provision of funds, the loan is considered interest-bearing. An exception is when citizens, including individual entrepreneurs, enter into a transaction worth no more than 100 thousand rubles or when the subject of the transaction is things defined by generic characteristics (clause 4 of article 809 of the Civil Code).
At the request of a party to the agreement, in accordance with the provisions of Article 432 of the Civil Code of the Russian Federation, the purpose of the loan may be recognized as an essential condition. If such a condition is included in the text, the borrower is obliged to report to the lender on the intended use of funds (Article 814 of the Civil Code). The purpose of receiving the amount or property:
- Define accurately and unambiguously.
- Write in the contract itself or the application.
- Complete with a list of measures by which the lender can control the use of funds.
Please note that the presence of such a condition gives the lender two additional opportunities to terminate the transaction (part 3 of article 807, part 2 of article 814 of the Civil Code). This will happen if the borrower:
- Prevents the lender from controlling the use of money.
- Uses the object of the loan for other purposes.
Also in contractual and judicial practice, mandatory conditions include provisions in the agreement on the timing and procedure for repaying a loan:
- If the condition on the term is not included in the text, the loan will have to be repaid within 30 days from the date of the request (clause 1 of article 810 of the Civil Code).
- In advance, a return is possible subject to the norms of the law (paragraph 2 of article 810 of the Civil Code). In particular, early repayment is possible with the consent of the lender. Such consent is either immediately included in the text of the agreement, or obtained separately when the borrower has the opportunity to pay in advance.
- If the text does not specify in what order the loan should be returned (for example, to the lender's account), the borrower himself determines to which account to transfer the amount or otherwise make a return.
Before you draw up a loan agreement, consider other conditions
Other terms of the agreement depend on the type of loan, they are determined based on the specifics of the relationship. It is affected by:
- the legal status of the parties to the contract;
- requirements of the legislation that governs the relationship of the parties.
Credit institutions must provide the consumer with complete information about the terms of the loan
The law imposes separate requirements if an individual becomes a party to the contract. A credit institution that provides funds to consumers:
- is responsible for the content of the loan agreement as a professional side of the relationship, including the development of mandatory and additional conditions;
- should not include in the agreement conditions that infringe on the rights of the borrower.
The law prohibits imposing insurance conditions on consumers
It is necessary to focus on consumer protection legislation (Article 16). It is impossible to impose conditions without which it is possible to conclude a contract.
An unscrupulous credit institution may include additional conditions in the contract with the consumer (for example, oblige him to sign life insurance conditions, etc.). In order for Rospotrebnadzor not to be held liable, the bank should not impose such a condition in an imperative manner. He has the right to propose an appropriate contract.
For example, the court pointed out that the bank has the right to include conditions on life and health insurance in a loan agreement with a citizen borrower, if the borrower can enter into an agreement without such a condition. In this case, there will be no violation. If the credit institution is held liable by an administrative body, the order can be challenged ().
A microfinance organization cannot issue an amount above the limit and hush up information about the terms of the loan
A special law regulates the procedure and conditions under which a microfinance organization must operate. It is not entitled to issue funds, the amount of which exceeds 3 million rubles. for companies and individual entrepreneurs and 500 thousand rubles. for an individual (clause 8, part 1 and clause 2, part 3, article 9).
The microfinance organization is obliged:
- provide information on the procedure and conditions for granting a microloan;
- post a copy of the rules by which it issues funds in an accessible place, including on the Internet;
- inform about the terms of the microloan agreement, the possibility and procedure for changing its terms;
- guarantee the observance of secrecy about the operations of their borrowers (Article 9 of Law No. 151-FZ).
But the borrower will not be able to challenge the terms of the contract in whole or in part if the lender has complied with the requirements of the law and has not misled the counterparty.
For example, the court dismissed the claim. The applicant demanded that the clauses of the agreement be declared invalid. He signed an agreement with a microfinance company for 21 days with the collection of interest on the loan in the amount of 693.5% per annum. However, the defendant informed about the terms of the loan and return, the contract between him and the individual included significant and other conditions. The transaction was made voluntarily. At the time of its conclusion, the borrower agreed with the provisions of the agreement ().
The law determines the terms of the contract with the lender-pawnshop
If we are talking about a loan that a pawnshop provides, the essential terms of the contract will be:
- the name of the pledged thing;
- the amount of her assessment;
- interest rate on a loan;
- term for granting a loan (clause 3, article 7).
If the pawnshop does not include the required items, the antimonopoly service may hold him liable for inappropriate advertising.
The receipt confirms that the citizen received the loan
If both parties to the loan transaction are individuals, the regulation is simpler. A receipt for a loan will prove the conclusion of an agreement if the parties have included essential conditions in it. The courts note that the legislation does not impose special requirements on the content of receipts for debt obligations (appeal ruling of the Bryansk Regional Court dated 10.01.2018 No. 33-211/2018 (33-5181/2017) in case No. 2-3316/2017). However, in order to collect the debt and interest, it is necessary to prescribe the amount and term.
For example, the lender recovers the funds that he transferred to the borrower. The latter denied contractual relations and asked to recognize the agreement as not concluded. In court, he stated that he did not receive the money. The lender took advantage of the life situation of the defendant and forced him to write a disputed receipt. The Court did not agree with this position. He considered that the parties had entered into an agreement in which they agreed on the terms (appeal ruling of the Sverdlovsk Regional Court dated August 16, 2017 in case No. 33-14055/2017).
If the parties do not fix the amount in the receipt, other documents can prove the transfer of funds. For example, payment orders ().
If you are entering into a loan agreement in relation to cash, consider the restrictions
The company plans to provide a counterparty with a loan. Before entering into a loan agreement, check:
- how the document was made
- whether the essential conditions are correctly spelled out,
- what is said about the cashback scheme and interest for their use.
In particular, make sure that the terms of the contract do not violate the requirements of the law.
You can not include a hidden condition on an increase in the interest rate in the contract
The lender is entitled to receive interest on the loan amount. The size and order of the parties are determined in the contract (Article 809 of the Civil Code). The borrower can challenge the terms of the deal that unlawfully increase interest.
For example, the court invalidated the provision of the agreement of a microfinance organization. Under the agreement, the borrower received the funds and agreed to pay interest in the amount of 18% per annum, as well as a monthly fee of 1.8% of the loan amount. From the literal interpretation of the clause of the agreement, the court concluded that the lender requires additional funds for issuing a loan. In addition to interest, the borrower paid a monthly commission on the amount of the lending limit. At the same time, the agreement was not an agreement on opening a credit line, and the borrower did not have the right to receive the loan amount at any time. The commission clause unreasonably increased the interest rate ().
Write down the percentage
The Federal Tax Service may charge additional taxes to companies that issue a loan without a condition for receiving interest. If the inspection considers that the company underestimates the tax base, it will be necessary to prove the reality of the contractual relationship.
For example, the company challenged the decision of the tax authority. The inspectorate assessed additional income tax, VAT, and penalties. She believed that the taxpayer did not take into account non-operating income in the form of interest from the provision of loans, and concluded agreements without a condition on interest in order to underestimate income. But the court concluded that the Federal Tax Service had no legal grounds to include unearned interest on interest-free loans in non-operating income. The amounts accrued by the tax authority under disputed agreements were not paid by the borrowers to the taxpayer (decree of the Arbitration Court of the East Siberian District of October 20, 2016 No. F02-5840/2016 in case No. A74-4459/2015).
After you draw up a loan agreement, keep proof of the transfer of funds
Loan transactions are suspicious if the parties made them within a year before the introduction of the bankruptcy procedure (). To include a claim in the register of creditors, it is necessary to present documents that confirm business transactions.
For example, the court returned the case for a new trial. He considered that the lower authorities did not indicate on the basis of what evidence the decision was made to include the borrower's claim in the register of creditors' claims. The funds that the company transferred under loan agreements may indicate the creation of artificial debt. This situation violates the rights and legitimate interests of third parties, it is necessary to confirm the reality of transactions ().
Article 807
Loan agreement
(as amended by Federal Law No. 212-FZ of July 26, 2017)
(see text in previous)
1. Under a loan agreement, one party (the lender) transfers or undertakes to transfer into the ownership of the other party (the borrower) money, things identified by generic characteristics, or securities, and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal amount of money received them things of the same kind and quality or the same securities.
If the lender in the loan agreement is a citizen, the agreement is considered concluded from the moment the loan amount or other subject of the loan agreement is transferred to the borrower or the person indicated by him.
2. Foreign currency and currency valuables may be the subject of a loan agreement on the territory of the Russian Federation subject to the rules of Articles 140, 141 and 317 of this Code.
3. If the lender undertook to provide a loan by virtue of a loan agreement, he has the right to refuse to perform the agreement in whole or in part if there are circumstances that clearly indicate that the granted loan will not be repaid on time.
The borrower under the loan agreement, by virtue of which the lender has undertaken to provide a loan, has the right to refuse to receive a loan in whole or in part, notifying the lender of this before the deadline for the transfer of the subject of the loan established by the agreement, and if such a period is not established, at any time before the moment the loan is received, if otherwise provided by law, other legal acts or a loan agreement, the borrower under which is a person engaged in entrepreneurial activity.
4. A loan agreement may be concluded by placing bonds. If a loan agreement is concluded by placing bonds, the bond or the document confirming the rights under the bond indicates the right of its holder to receive, within the period stipulated by it, from the person who issued the bond, the nominal value of the bond or other property equivalent.
5. The loan amount or other subject of the loan agreement, transferred to the third party indicated by the borrower, shall be considered transferred to the borrower.
6. A borrower - a legal entity has the right to attract funds from citizens in the form of a loan at interest by means of a public offer or by an offer to make an offer sent to an indefinite circle of persons, if the law grants such a legal entity the right to attract funds from citizens. The rule of this paragraph shall not apply to the issue of bonds.
7. Features of granting a loan at interest to a borrower-citizen for purposes not related to entrepreneurial activity are established.
Financial service obligations
Loan agreement
By loan agreement one side (lender) transfers ownership to another party (to the 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 of the same kind and quality (clause 1, article 807 of the Civil Code of the Russian Federation).
Relations arising from a loan agreement and a loan agreement are regulated by Chapter 42 of the Civil Code of the Russian Federation.
The loan agreement is real, since it is considered concluded from the moment the money or other things are transferred, unilateral, it can be both paid and free of charge.
Due to the fact that the loan agreement is real, if in reality the loan amount was not transferred to the borrower, then such an agreement is considered not concluded.
3 art. 812 of the Civil Code of the Russian Federation).
In the loan agreement, only the borrower is the obligated person, and the lender is the authorized person, which indicates the unilateral nature of the agreement.
An essential condition the loan agreement is the subject of the agreement, i.e. money or other movable things determined by generic characteristics.
In the event that the loan agreement is reimbursable, the agreement
the amount of interest and the procedure for their payment are indicated. In the absence of
agreement conditions on the amount of interest, their amount is determined
rate prevailing at the location of the lender
refinancing on the date of payment by the borrower of the amount of the debt or its corresponding part.
Unless otherwise agreed, interest is paid monthly until the date of repayment of the loan amount.
Return period the amount of the loan is not an essential condition.
In cases where the term for repayment is not established by the agreement or is determined by the moment of demand, the loan amount must be returned by the borrower within thirty days from the date the lender makes a request for this, unless otherwise provided by the agreement. Unless otherwise provided by the loan agreement, the interest-free loan amount may be returned by the borrower ahead of schedule. The loan amount provided at interest may be repaid ahead of schedule with the consent of the lender.
Contract form
A loan agreement between citizens must be concluded in writing if its amount exceeds at least ten times the minimum wage established by law, and in the case when the lender is a legal entity, regardless of the amount.
Along with the agreement signed by the parties, a borrower's receipt or other document certifying the transfer of the subject of the loan (Article 808 of the Civil Code of the Russian Federation) may be submitted to confirm the loan agreement and its terms.
If the loan agreement must be made in writing, it is not allowed to contest it for lack of money by means of witness testimony, except in cases where the agreement was concluded under the influence of fraud, violence, threat, malicious agreement between the borrower's representative and the lender, or a combination of difficult circumstances.
A loan agreement is assumed to be free of charge (interest-free) in cases where:
- the contract is concluded between citizens for an amount not exceeding fifty times the minimum wage established by law, and is not related to the implementation of entrepreneurial activities by at least one of the parties;
The parties to the agreement are lender and borrower. The lender transfers to the borrower money or things defined by generic characteristics, and the borrower must return them in accordance with the terms of the contract. Any person can act as a lender and borrower. Institutions cannot act as lenders, and budgetary institutions cannot be borrowers.
A state or municipal enterprise is not entitled to make transactions related to the provision of loans without the consent of the owner (clause 4, article 18 of the Federal Law “On State and Municipal Unitary Enterprises”). A unitary enterprise has the right to borrow only in agreement with the owner of the property of a unitary enterprise of the volume and directions for using the funds raised (clause 2, article 24 of the Federal Law “On State and Municipal Unitary Enterprises.”) According to the Budget Code of the Russian Federation dated July 31, 1998 No. 145 -FZ state and municipal unitary enterprises must register their borrowings from third parties with the appropriate financial authority.
Borrower's responsibility:
- 1) In cases where the borrower does not return the loan amount on time, interest is payable on this amount in the amount provided for in paragraph 1 of Article 395 of the Civil Code of the Russian Federation, from the day it was supposed to be returned until the day it was returned to the lender, regardless of payment interest, if the loan agreement is for compensation.
If the loan agreement provides for the return of the loan in installments (in installments), then if the borrower violates the deadline set for the return of the next part of the loan, the lender has the right to demand early repayment of the entire remaining loan amount together with the interest due (Article 811 of the Civil Code of the Russian Federation). - 2) If the borrower fails to fulfill the obligations stipulated by the loan agreement to ensure the return of the loan amount (for example, a pledge of property), the lender has the right to demand from the borrower early repayment of the loan amount and payment of interest due, unless otherwise provided by the agreement (Article 813 of the Civil Code of the Russian Federation).
Loan types:
- reimbursable and gratuitous (interest-free),
- target (Article 814 of the Civil Code of the Russian Federation) and without defining a target,
- according to the method of registration with the help of securities - bills and bonds,
- by subject composition - a state loan agreement in which the borrower is the Russian Federation, a subject of the Russian Federation, and the lender is a citizen or a legal entity.
Loan agreement
The loan agreement is the most typical of the general category of credit obligations. In view of its earlier appearance, it is a general model on which the regulation of all credit relations is built (the rules on a loan apply to other credit obligations in accordance with paragraph 2 of article 819, part 1 of article
822 and paragraph 2 of Art. 823 of the Civil Code of the Russian Federation).
The concept of a loan agreement.
Legal regulation of the loan agreement. The rules on the loan agreement are enshrined in § 1, Art. 42 of the Civil Code of the Russian Federation. It is also necessary to take into account the provisions of a number of federal laws that mediate settlement and credit relations and determine the structure of the banking system in Russia: Law of the Russian Federation of December 2, 1990 No. 395-1 “On banks and banking activities”, Federal Law of July 10, 2002 No. 86-FZ “ On the Central Bank of the Russian Federation (Bank of Russia)”, etc.
Legal characteristics of the loan agreement. The loan agreement is real (it is considered concluded from the moment the money or other things are transferred) and unilateral (since the lender, having transferred the money or other things, is further free from any obligations, while the borrower must return the amount of the debt). A loan agreement can be both reimbursable (as a general rule) and gratuitous: the lender has the right to receive interest from the borrower on the loan amount, unless otherwise provided by law or the agreement itself (clause 1, article 809 of the Civil Code of the Russian Federation).
Essential terms of the loan agreement. The conditions, in the absence of which the loan agreement is recognized as not concluded, include provisions on its subject.
Subject of the loan agreement. The subject of the loan agreement is money or other things defined by generic characteristics (for example, gasoline, timber, rolled metal, etc.). At the same time, the borrower, having received money under the loan agreement, is obliged to return to the lender the same amount, and if it was about these things, an equal amount of them of the same kind and quality.
It is impossible to provide for the return of other things instead of money, since in this case there will be a sale and purchase, and not a loan.
Foreign currency and currency values may be the subject of a loan agreement on the territory of the Russian Federation in compliance with the rules of Articles 140, 141, 317 of the Civil Code of the Russian Federation. The same rules apply to a loan agreement containing an indication of a foreign currency as to a loan agreement in rubles.
Thus, the property constituting the subject of the loan becomes the property of the borrower, since the latter uses it for his own needs, mixing it with similar property. The lender loses all rights to this property and can only demand the return of similar, but not the same property (which distinguishes a loan from a lease and a loan).
Term of the loan agreement. Usually, the contract sets the term for repayment of the loan amount. If such a period is not established or is determined by the moment of demand, the loan amount must be returned by the borrower within thirty days from the date the lender makes a request for this, unless otherwise provided by the agreement (clause 1, article 810 of the Civil Code of the Russian Federation).
The possibility of early performance of the obligation depends on the nature of the loan. The amount of an interest-free loan may be repaid by the borrower ahead of schedule, unless otherwise provided by the agreement. The amount of a loan granted at interest may be repaid ahead of schedule only with the consent of the lender.
Unless otherwise provided by the agreement, the loan amount is considered returned at the time of its transfer to the lender or crediting the relevant funds to his bank account (clause 3, article 810 of the Civil Code of the Russian Federation).
Loan agreement price.
In accordance with Art. 807 of the Civil Code of the Russian Federation, under a loan agreement, either funds are transferred, whose price cannot be determined, since they are always transferred at face value (Article 140 of the Civil Code of the Russian Federation), or things defined by generic characteristics. They are transferred from the side of the lender to the borrower also without an appropriate price, since in accordance with the terms of the contract, the lender is returned not their price (value), but other identical (homogeneous) things, but of the same kind and quality. In this regard, there is no valuation of the subject in the loan agreement.
Loan relations are assumed to be reimbursable, unless their gratuitous nature is directly established by law or a specific agreement. The lender has the right to receive interest from the borrower on the amount of the loan in the amount and in the manner specified by the agreement. In the absence of a clause on the amount of interest in the agreement, they are determined by the bank interest rate (refinancing rate) that exists at the location (or residence) of the lender on the day the borrower pays the amount of the debt or part of it (clause 1, article 809 of the Civil Code of the Russian Federation). Unless otherwise agreed, interest is paid monthly until the date of repayment of the loan amount.
The loan agreement is assumed to be interest-free, unless it expressly provides otherwise, in cases where (clause 3 of article 809 of the Civil Code of the Russian Federation):
- the contract is concluded between citizens for an amount not exceeding fifty times the minimum wage established by law, and is not related to the implementation of entrepreneurial activities by at least one of the parties (the so-called household loan);
- under the contract, the borrower is transferred not money, but other things defined by generic characteristics.
Parties to the loan agreement. The parties to the loan agreement are the borrower and the lender. As a general rule, any subjects of civil law - capable citizens, legal entities, public legal entities that own their property can act both as a borrower and as a lender.
Exceptions to this rule may be established by law. So, the institution by virtue of paragraph 1 of Art. 298 of the Civil Code of the Russian Federation, not having the right to dispose of the property assigned to it, cannot enter into a loan relationship (unless we are talking about income from activities permitted by the owner), and a state-owned enterprise is authorized to make acts of disposal of property only with the consent of the owner. 1 article 297 of the Civil Code of the Russian Federation).
The Civil Code does not put any obstacles to the systematic provision by persons who are not banks and other credit organizations of reimbursable (with payment of interest) loans. However, such lending activities are subject to mandatory licensing and can only be carried out by credit institutions. Consequently, the activity of the lender in providing reimbursable loans should be of an episodic nature and should not reach a size that would allow it to be recognized that, not being a bank, it is essentially engaged in banking operations.
Loan agreement form. A mandatory written form of a loan agreement is established for cases (clause 1 of article 808 of the Civil Code of the Russian Federation):
- if the loan amount exceeds 10 minimum wages;
- if the lender is a legal entity - regardless of the amount.
Failure to comply with the form does not entail the invalidity of the contract, however, it gives rise to the consequences specified in paragraph 1 of Art. 162 of the Civil Code of the Russian Federation.
According to paragraph 2 of Art. 808 of the Civil Code of the Russian Federation, in confirmation of the loan agreement and its terms, a borrower's receipt or other document may be submitted certifying the transfer of a certain amount of money or a certain number of things by the lender to him (these can be, for example, certified copies of primary accounting documents compiled by the parties for accounting purposes) . When the borrower repays the debt, the receipt must be returned to him by the lender with a note that the money has been received.
Loan relations, by agreement of the parties, may be formalized by issuing a bill of exchange, and in cases expressly provided for by law or other legal acts, a loan agreement may be formalized by issuing and selling bonds.
bill of exchange- a security that certifies, in compliance with the requirements for its form, a simple and unconditional personal obligation of the drawer (promissory note) or another payer specified by the drawer (bill of exchange or draft) to pay a certain amount of money upon the due date specified in the bill bona fide owner of the bill (billholder). The general civil rules on a loan agreement apply to a loan obligation drawn up by a bill of exchange insofar as they correspond to the special legislation on this security. At present, promissory notes are regulated by Federal Law No. 48-FZ of 11.03.1997 “On Transferable and Promissory Notes”, which confirmed the validity of the Decree of the CEC and SNK of the USSR of 07.08.1937 “On the Enactment of the Regulations on Transferable and Promissory Notes” on the territory of the Russian Federation ".
A bill of exchange obligation must be presented in the form of a written document containing all the details provided for the bill. The demand of the bill holder, based on a document that does not meet the requirements for the form and availability of details, is subject to rejection by the court, which does not prevent the presentation of an independent claim based on the general norms of civil legislation on obligations.
The bill is characterized by the abstract nature of the obligation fixed in it, i.e. independence from the presence or absence of grounds for its issuance (cause). Compulsory execution of a bill of exchange is carried out in a special manner. In case of refusal to pay a bill, certified by a notary (“protest of a bill of non-payment, non-acceptance or non-dating”), the judge, at the request of the bill creditor, single-handedly and without trial issues a court order that has the force of an enforcement document. In addition, by virtue of Art. 48 Regulations on a bill of exchange and promissory note and art. 3 of the Law on Transferable and Promissory Notes, the holder of a bill of exchange has the right to demand from the defendant in a claim the payment of interest on the amount indicated in it from the date of the due date (as payment for the use of other people's money) and penalties (as a sanction for late payment) in the amount of the discount rate, provided for in Art. 395 of the Civil Code of the Russian Federation. All this creates the undoubted advantages of a bill of exchange over a conventional IOU that formalizes a loan relationship.
Bond- a security certifying the right of its holder to receive from the person who issued the bond, within the period provided for by it, the nominal value of the bond or other property equivalent, as well as the percentage fixed in it of its nominal value or other property rights.
2 tbsp. 816 of the Civil Code of the Russian Federation). A bond formalizes typical loan relations, in which the issuer of bonds acts as a borrower (debtor), and bondholders act as lenders (creditors).
The legal regime of bonds is governed primarily by the norms of special legislation (Part 3, Article 816 of the Civil Code of the Russian Federation), in particular, the rules of Federal Law No. 39-FZ of April 22, 1996 “On the Securities Market” and the norms of other special laws.
The bonds are placed among the purchasers in separate issues (issues) and within the framework of one such issue have an equal volume and content of the rights of claim. Depending on the entity issuing bonds and guaranteeing payment to their owners of the specified amount and the agreed interest, bonds are divided into state, municipal and legal entities (corporate bonds). The latter can be issued by joint-stock companies or limited liability companies.
Bonds can be both bearer and registered. Bonds that provide their owners with other opportunities than receiving cash income are often referred to as targeted bonds (for example, housing certificates).
A bond may exist in documentary or non-documentary form. In the first case, its owner is established on the basis of the presentation of a certificate of paper or a record of depositing it on the account, in the second - on the basis of an entry in the register of securities or by a record of the deposit of paper on the account.
Types of loan agreement. The Civil Code specifically distinguishes two types of loan agreement: target loan and state loan.
Purpose loan agreement establishes specific conditions for the borrower to use the funds received for strictly defined purposes (clause 1, article 814 of the Civil Code of the Russian Federation). Such, for example, are loan agreements concluded by citizens for the acquisition of certain property (apartments, summer cottages, cars, etc.). In this case, the agreement determines the measures of control of the lender over the intended use of the loan, and the borrower is obliged to ensure the possibility of exercising such control. Failure by the borrower to fulfill this obligation, as well as violation of the intended purpose of the received loan, gives the lender the right to demand early repayment of the loan with interest due, unless other consequences are established by the agreement.
State (municipal) loan- this is an agreement in which the borrower is the Russian Federation, a constituent entity of the Russian Federation or a municipality, and the lender is a citizen or legal entity.
A state loan agreement is concluded by acquiring by the lender of issued government bonds or other government securities certifying the lender's right to receive from the borrower the funds provided to him on loan or, depending on the terms of the loan, other property, established interest or other property rights within the terms stipulated by the conditions issuance of a loan into circulation (clause 2, article 817 of the Civil Code of the Russian Federation).
The obligations of the borrower depend on the terms of the loan. They can consist both in the return of a debt with the payment of interest, and in the provision to the lender of any property (commodity loan) or property rights. It is not allowed to change the terms of the loan issued into circulation.
Article 89 of the Budget Code of the Russian Federation defines state internal borrowings as loans attracted from individuals and legal entities, foreign states, international financial organizations in the currency of the Russian Federation, for which debt obligations of the Russian Federation arise as a borrower or a guarantor of repayment of loans by other borrowers, denominated in the currency of the Russian Federation. Thus, domestic loans are issued in the national currency, and to raise funds, securities are issued that are in demand on the national stock market. Various tax incentives are used to further encourage investors. Such borrowings, along with other forms of government borrowing, are included in the state debt of the Russian Federation (Article 98 of the RF BC).
Obligations of the borrower under the loan agreement.
Since the loan agreement is unilaterally binding and the obligated party is the borrower, the content of the agreement constitutes the obligations of the latter, which correspond to the rights of the lender.
The borrower under the loan agreement is obliged to:
1. Return to the lender the received loan amount.
The terms and procedure for fulfilling this obligation are determined by the loan agreement. In cases where the repayment period is not established by the agreement or is determined by the moment of demand, the loan amount must be returned by the borrower within thirty days from the date the lender makes a request for this, unless otherwise provided by the agreement (clause 1, article 810 of the Civil Code of the Russian Federation).
Unless otherwise provided by the loan agreement, the loan amount is considered returned at the time of its transfer to the lender or the transfer of the relevant funds to his bank account (clause 3 of article 810 of the Civil Code of the Russian Federation). When the loan agreement is interest-bearing, its proper execution also implies the payment of interest on the principal debt in full.
If the borrower evades the return of the loan amount on time, the lender has the right to demand the application of a measure of responsibility: the payment of interest 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 was supposed to be returned until the day it was returned to the lender, regardless of the payment of interest on the loan amount (unless otherwise provided by law or agreement).
If the loan agreement provides for the return of the loan in installments (in installments), then if the borrower violates the deadline set for the return of the next part of the loan, the lender has the right to demand early repayment of the entire remaining loan amount, together with the interest due (Article 811 of the Civil Code of the Russian Federation).
2. Ensure the return of the loan amount, if it is established by the agreement.
This obligation may be stipulated by an agreement between the parties on securing the performance of the contract by, for example, pledging the borrower's property.
If the borrower fails to fulfill the obligations specified in the agreement to ensure the return of the loan amount, as well as in case of loss of security or deterioration of its conditions due to circumstances for which the lender is not responsible, the lender has the right to demand from the borrower early repayment of the loan amount and payment of interest due (unless otherwise provided by the agreement). ).
3. Use the borrowed funds strictly for specific purposes and ensure that the lender can exercise control over the intended use of the loan.
This obligation is typical for the target loan agreement, which has already been mentioned above. In case of non-fulfilment, the lender has the right to demand from the borrower early repayment of the loan amount and payment of due interest, unless otherwise provided by the agreement.
Contestation of a loan agreement.
In practice, there are situations of making a so-called non-currency loan, when money or other things are not actually received by the borrower from the lender or received in a smaller amount than specified in the contract.
The borrower, for example, issues a receipt to the lender for receiving money, although he did not actually receive it, and the meaning of the transaction is that the lender promises to “forgive the debt” if the borrower performs any actions in his interests. But such a receipt can also be obtained by the lender as a result of the use of violence or threats against the borrower.
A loan of this kind cannot be attributed to the number of imaginary transactions, because, despite its lack of money, it creates legal consequences for the borrower in the form of an obligation to return what is stipulated by the contract. But in order to protect the borrower from an unscrupulous lender, the law provides for a procedure for contesting a loan agreement for lack of money (Article 812 of the Civil Code of the Russian Federation).
The borrower has the right to challenge the loan agreement due to its lack of money, proving that the money or other things were not actually received by him from the lender or received in a smaller amount than indicated in the agreement (clause 1, article 812 of the Civil Code of the Russian Federation). Loan agreement concluded in accordance with paragraph 1 of Art. 808 of the Civil Code of the Russian Federation orally, can be challenged by the borrower for lack of money using any evidence allowed by law.
If the loan agreement must be made in writing (Article 808 of the Civil Code of the Russian Federation), it is not allowed to challenge it for lack of money by means of witness testimony, except in cases where the agreement was concluded under the influence of fraud, violence, threats, a malicious agreement between the borrower's representative and the lender or set of difficult circumstances.
If, in the process of challenging the loan agreement by the borrower due to its lack of money, it is established that the 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 amount than specified in the contract, the contract is considered concluded for this amount of money or things (clause 3 of article 812 of the Civil Code of the Russian Federation).
The fact of the lack of money of the loan established by the court, regardless of the reasons that caused it, allows us to consider the agreement as not concluded.
LOAN AGREEMENT N _____
________________ "___" __________ ____
Citizen of the Russian Federation _______________________________________,
(Full name of the citizen)
(when, by whom)
hereinafter referred to as "Lender", on the one hand, and
citizen of the Russian Federation _______________________________________,
(Full name of the citizen)
passport: series _____ N __________, issued by _________________________________,
(when, by whom)
residing __ at the address: __________________________________________________,
hereinafter referred to as "Borrower", on the other hand, collectively referred to as
The "Parties", individually the "Party", have entered into this Agreement
1. THE SUBJECT OF THE AGREEMENT
1.1. Under this Agreement, the Lender transfers to the ownership of the Borrower funds in the amount of _____ (__________) rubles (hereinafter referred to as the “Loan Amount”), and the Borrower undertakes to return to the Lender the Loan Amount and accrued interest on it in the amount and terms stipulated by the Agreement.
The contract is considered concluded if the parties, in the form required in the relevant cases, reach an agreement on all the essential terms of the contract. The condition on the subject of the contract is an essential condition of the contract (clause 1, article 432 of the Civil Code of the Russian Federation).
The essential terms of the contract are the terms that are named in the law or other legal acts as essential or necessary for contracts of this type (paragraph 2, clause 1, article 432 of the Civil Code of the Russian Federation). The loan amount is an essential condition of the loan agreement (clause 1, article 807 of the Civil Code of the Russian Federation).
1.2. The amount of interest under this Agreement is _____% per annum of the Loan Amount.
2. PROCEDURE FOR PROVISION AND REFUND OF THE LOAN AMOUNT
2.1. The Lender transfers the Loan Amount to the Borrower within the period until "___" __________ ____. The fact of the transfer of funds is certified by the Borrower's receipt of receipt of the Loan Amount (hereinafter referred to as the "Borrower's Receipt").
2.2. The Borrower shall return to the Lender the Loan Amount and the interest due no later than "___" __________ ____.
2.3. The loan amount is returned by the Borrower by _________________________
__________________________________________________________________________.
(transfer of cash, crediting of funds
to the account of the lender, or specify another method)
2.4. The Loan Amount shall be deemed repaid from the moment the Lender's receipt is issued to the Borrower in receipt of the Loan Amount and interest accrued on it (hereinafter referred to as the "Lender's Receipt").
3. INTEREST FOR THE LOAN AMOUNT
3.1. Interest for the use of the Loan Amount is accrued from the moment the funds are transferred to the Borrower.
3.2. Interest for the use of the Loan Amount shall be paid simultaneously with the return of the Loan Amount.
4. RESPONSIBILITIES OF THE PARTIES
4.1. For late repayment of the Loan Amount (clause 2.2 of the Agreement), the Lender has the right to require the Borrower to pay a penalty in the amount of _____% (__________ percent) of the unpaid Loan Amount for each day of delay.
4.2. The payment of the penalty does not release the Borrower from the performance of obligations in kind.
5. FINAL PROVISIONS
Along with the condition on the subject of the contract, as well as the conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, the essential terms of the contract are all those conditions regarding which, at the request of one of the parties, an agreement must be reached (para. 2 paragraph 1 article 432 of the Civil Code of the Russian Federation). Thus, the parties have the right to determine for themselves any condition as essential, in case of inconsistency of which the contract cannot be considered concluded.
5.1. The Agreement is considered concluded from the moment the Lender actually transfers the Loan Amount to the Borrower in accordance with clause
2.1 of this Agreement.
5.2. The Agreement is valid until the Borrower fully fulfills its obligations to repay the Loan Amount, which is confirmed by the Lender's Receipt.
5.3. The Agreement is made in two copies, one copy for each of the Parties.
5.4. For all other issues not regulated by this Agreement, the Parties are guided by the provisions of the current legislation of the Russian Federation.
6. ADDRESSES AND SIGNATURES OF THE PARTIES
Lender Borrower
gr. ________________________________ gr. ________________________________
(State of nationality, (State of nationality,
FULL NAME. citizen) Full name citizen)
Passport: series _____ N ____________, Passport: series _____ N ____________,
issued by _____________________________, issued by _____________________________,
(when, by whom) (when, by whom)
residing at: _________ residing at: _________
____________________________________ ____________________________________
_____________ (____________________) _____________ (____________________)
Essential terms of the loan agreement
Cannot lend to pay off someone else's tax debt
The essence of the dispute lies in the fact that the lender did not agree that the court recognized the loan agreement as not concluded and refused to satisfy the claim for the recovery of the debt under the agreement. The federal district court agreed with the decision of the court, explaining the following.
The loan agreement is a real transaction and is considered concluded from the moment the money or other things are transferred. Since the actual transfer of money did not take place, since the applicant, on account of the transfer of funds on loan, repaid the debt of the borrower for taxes, therefore, the agreement cannot be considered concluded. Moreover, in accordance with Art. 45 of the Tax Code of the Russian Federation, the taxpayer must fulfill the obligation to pay taxes on his own (that is, on his own behalf and at his own expense). As a result, the complaint is not upheld.
(Source: Resolution of the Federal Arbitration Court of the North Caucasus District of February 21, 2006 N F08-349 / 06)
Can paperless securities be transferred under a loan agreement?
The essence of the dispute is whether registered non-documentary securities (shares) can be the subject of a loan agreement. The court of appeal, recognizing such an agreement as a void transaction, referred to its inconsistency with the requirements of Art. 807 of the Civil Code of the Russian Federation, considering that registered non-documentary securities cannot be the subject of a loan agreement, since they are an individually defined thing that has certain features that distinguish it from things of the same kind. Meanwhile, the court of the federal district did not support such a conclusion, noting that such transactions are allowed by law under certain conditions. In particular, according to paragraph 4 of Art. 3 of the Federal Law "On the Securities Market", a broker has the right to lend funds and / or securities to a client for making securities purchase and sale transactions, provided that the client provides security. Transactions made using cash and/or securities lent by a broker are referred to as margin transactions. In this regard, the court, giving a legal assessment of the loan agreement, had to find out the real will that the parties had at its conclusion, and, taking into account the established, apply to the transaction, which the parties really had in mind, the rules related to it. The case has been remanded for retrial.
(Source: Decree of the Federal Arbitration Court of the Moscow District of July 27, 2006 N KG-A40 / 6397-06)
Is a loan of funds by means of a bill of exchange an insignificant transaction?
The organization applied to the court for the recovery of debt under loan agreements.
The courts refused to satisfy the claim under one of the contracts due to its nullity. The courts proceeded from the fact that the subject of the loan under the specified agreement is a bill, that is, an individually defined thing - a security, which is contrary to Art. 807 of the Civil Code of the Russian Federation.
Meanwhile, the federal arbitration court of the district canceled the judicial acts in the case, indicating the following.
According to the provisions of the Civil Code of the Russian Federation, under a loan agreement, one party (lender) transfers money or other things defined by generic characteristics to the ownership of the other party (borrower), and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal number of other things received by him the same kind and quality.
In the case under consideration, under the loan agreement, the lender undertook to transfer funds to the borrower's property, and the borrower undertook to return the indicated funds to the lender in time and in accordance with the terms of the agreement. The terms of this agreement also provide for the obligation of the lender to transfer funds to the borrower by transferring bills of exchange. Based on the existence of contradictions contained in the contract regarding its subject matter, the court had to evaluate it by interpreting its terms according to the rules of Art. 431 of the Civil Code of the Russian Federation and establish the actual will of the parties when it is concluded in terms of the subject of the contract, its legal nature, taking into account the right of the parties to conclude a contract, both provided and not provided for by law. Since the courts did not examine the question of the actual will of the parties when concluding the contract, the case was sent for a new trial.
(Source: Decree of the Federal Arbitration Court of the Far Eastern District of October 2, 2007 N F03-A16 / 04-1 / 2889)
The loan will have to be repaid, even if it was designated as "financial assistance" when it was transferred
The company went to court, demanding to recover from the organization a debt under an interest-free loan agreement.
As proof of the loan, the company submitted payment orders.
One of the courts considered the claim unfounded, since in these payment orders, in the column "Purpose of payment", "financial assistance" was indicated as the basis for the transfer of funds. There were no references to the loan agreement in the instructions.
The Presidium of the Supreme Arbitration Court of the Russian Federation did not agree with this position of the court and explained the following.
Other grounds for the transfer of funds specified in the payment orders do not exempt the defendant from returning them to the plaintiff. When considering the dispute, the defendant did not deny the fact of receiving money from the plaintiff. Meanwhile, he did not provide evidence of either their return or the commission by these same persons of other (except for the loan agreement) transactions.
According to the norms of civil law, legal obligations between commercial organizations are based on the principles of compensation and equivalence of exchanged material objects, the inadmissibility of unjust enrichment. Based on the Civil Code of the Russian Federation, the contract is assumed to be paid, unless otherwise follows from the law, other legal acts, the content or essence of the contract.
With this in mind, the inaccurate indication by the plaintiff in the payment documents of the purpose of payment (financial assistance) does not relieve the defendant from the obligation to return the funds received by him.
