The content of the loan agreement and its form are regulated Art. 819 and 820 of the Civil Code of the Russian Federation. With the help of this document, as well as a loan agreement, credit legal relations between different subjects are drawn up. Consider more Art. 819 of the Civil Code with the comments of lawyers.
AT Part 1 of Art. 819 of the Civil Code describes the essence of the loan agreement.In accordance with it, a banking or other financial institution that has the appropriate authority is obliged to provide the agreed amount of money to the borrower on the conditions and in the amount established by the agreement.
The second party - the borrower - accepts, according to paragraph 1 tbsp. 819 of the Civil Code, the obligation to return the funds received and pay the interest accrued on them.
К отношениям между заемщиком и кредитной the organization applies the rules set by par. 1 ch. 42, unless otherwise specified in par. 2 of the same chapter or does not follow from the essence of the agreement. This provision establishes the. 2 tbsp. 819 of the Civil Code.
To refer to the cash that the borrowerreceives under the loan agreement, in the regulations of the Central Bank, in practice and in special editions, the term "loan" is used, in addition to the term "credit". These words are considered synonymous.
From this it follows that the operations associated with the issuance and repayment of the loan, called credit or loan. This use of words has developed historically and is carried out according to tradition.
The name of the loan agreement loan does not indicate that it acts as a type of gratuitous use agreement (Article 689 of the Code).
Definition analysis loan agreement in art. 819 of the Civil Code leads to the conclusion that it is consensual. This is different from the loan agreement.
The agreement becomes valid at the time when the parties reach a legal relationship of agreement on the material terms of the transaction. They are fixed in the form prescribed by law.
These circumstances determine the presence of the following distinctive features of the loan agreement:
It must also be said that eachThe obligation arising under an agreement acts as a basis for the emergence of another. In this regard, the loan agreement is considered as a causal transaction (as well as a loan agreement). Meanwhile, in the agreement in question there is no basis for the emergence of obligations of the loan recipient beyond the scope of the agreement.
In the first paragraph Art. 819 of the Civil Code contains an indication of a special subject compositionagreement. Participants in the transaction may be, in fact, the borrower and the banking (other credit) organization. The first is the debtor, the second, respectively, the lender.
The latter can be only those organizations that have a license issued by the Central Bank of the Russian Federation and have the right to be called a credit or banking structure.
In contrast to the loan, which has both a consumer character and an entrepreneurial one, a loan agreement is exclusively an entrepreneurial transaction.
The borrower may be any individual or organization.
When concluding an agreement, in accordance with Art. 819 of the Civil Code, participants in the transaction arise counter-obligations. The sequence of their repayment follows from the essence of the agreement. It can not be changed by the contract.
To the principal duties of the borrower, according to Art. 819 of the Civil Codeshould include:
Banking (credit) organization may establish additional obligations. For example, the loan recipient should not shy away from monitoring the indicators of financial and economic activity.
If the loan is targeted, then the borrowerobliged to spend funds in accordance with the stated objectives. In some cases, the bank may require collateral from the loan recipient.
As one of the essential conditionsfavored subject of agreement. They are the actions of the borrower, aimed at the return of funds received. In this regard, the condition for repayment of debt must be present in all loan agreements. Without his consent, the agreement is recognized as not concluded.
A loan can only be issued in cash or in cash. Currency can be both foreign and national (rubles).
Transactions in foreign currency between authorized financial institutions and residents related to the receipt and return of funds, the payment of interest and sanctions are made without restrictions.
In banking practice developed many different ways to provide borrowed funds. Credit can be issued in a one-time manner.
According to the general rules enshrined in the RegulationsThe Central Bank No. 54-P in Section 2.1.1, the provision of funds to legal entities and individual entrepreneurs is carried out by crediting money to the borrower's account. The transfer can be made on any r / s, open to any banking organization.
According to some experts, the rule of paragraph 2.1.1, the above provisions, does not fully comply with article 313 of the Civil Code, in accordance with which the debtor may impose the performance of the assumed obligations on a third party.
When issuing funds, "bypassing the loan recipient",a borrower who is, for example, a debtor under a contract for the supply of goods, on the basis of a credit agreement, imposes on the banking structure the fulfillment of his obligation to pay for the goods shipped.
Clause 2.1.1 of the Provision deprives the loan recipient of this opportunity. This, according to lawyers, is an unreasonable restriction of the rights of participants in trafficking.
Если р/с ссудополучателя открыт в банке, credit provider, the amount is credited, bypassing the correspondent. account, through internal entries at the expense of the liabilities of the financial institution. From this it follows that the loan can be considered issued at the time of transfer of funds to the client’s account.
If the p / s is open in another banking structure,The amount is transferred by payment order. In this case, the moment of fulfillment of the obligation by the bank should be determined according to the rules on repayment of obligations in settlements by means of instructions.
The loan can be considered granted when crediting the amount to the correspondent account of the banking structure that serves the client’s borrowing operations.
The practice of giving them is quite common.The contract for issuing a bill of exchange loan contains one difference from the agreement of the standard form. The difference between them is that in the first case, the bank accepts an obligation to provide a loan with promissory notes, the total nominal value of which corresponds to the size of the promised loan.
Initially, arbitration courts reacted extremely negatively to bill crediting. Contracts were often declared invalid because, by virtue of Art. 819 of the Civil Code, pAgreement may be negotiated onlymoney, not securities. Clarity made the issue to the Armed Forces, recognizing the agreement on bill lending relevant legislation. According to the Court’s findings, such treaties are mixed.
This loan option involvesthe bank’s obligation to provide the borrower with funds in the future in amounts not exceeding the agreed-upon limits, without special negotiations.
According to paragraph 2.2 Provisions of the Central Bank No. 54-P, credit lines can be of two types. The first securities include any agreement in accordance with which the borrower acquires the right to receive and use funds during a specified period of money in the performance of any of the following requirements:
An example of this type of credit line is an overdraft on the card account, which is provided to the debit card holder.
The second type is the agreement, under the terms of which both of the above limits are set for the loan recipient.
A credit line agreement can bequalify as a framework in which only certain essential conditions of a future transaction are agreed. Other provisions, including the clause on the total amount of the contract, the parties may agree later.
The above limits are regarded as their own.kind of quota, within which the borrower has the right to demand from the banking structure issuing a loan, and the credit organization, in turn, acquires the obligation to issue funds.
