The content of the loan agreement and its form are governed by Art. 819 and 820 of the Civil Code of the Russian Federation . With the help of this document, like a loan agreement, credit legal relations between different entities are drawn up. We consider in more detail Art. 819 of the Civil Code with the comments of lawyers .
Norm provisions
In h. 1 Article. 819 of the Civil Code describes the essence of the loan agreement. In accordance with it, a banking or other financial institution having the appropriate authority is obligated to provide the agreed amount of money to the borrower on the terms and in the amount established by the contract.
The second party - the borrower - accepts, in accordance with paragraph 1 of Art. 819 of the Civil Code of the Russian Federation , the obligation to return the funds received and to pay interest accrued on them.
The rules established by par. Shall apply to the relations between the borrower and the credit institution. 1 ch. 42, unless otherwise provided in par. 2 of the same chapter or does not follow from the essence of the agreement. This provision secures paragraph 2 tbsp. 819 of the Civil Code of the Russian Federation .
Terminology features
To designate the funds that the borrower receives under the loan agreement, in the regulations of the Central Bank, in practice and in special publications, the term "loan" is used, in addition to the term "loan". These words are considered synonyms.
From this it follows that the operations associated with the issuance and repayment of a loan are called credit or loan. This use of words has developed historically and is carried out according to tradition.
The name of the loan agreement does not indicate that it acts as a kind of agreement on gratuitous use (689 article of the Code).
Distinctive features of the agreement
Analysis of the definition of a loan agreement in Art. 819 of the Civil Code of the Russian Federation allows us to conclude that it is consensual. This distinguishes it from a loan agreement.
The agreement becomes valid at the moment the participants in the legal relationship agree on the essential terms of the transaction. They are fixed in the form established by law.
These circumstances determine the presence of the following distinctive features of the loan agreement:
- Bilaterally binding. Conclusion of the agreement provided for by Art. 819 of the Civil Code of the Russian Federation (paragraph 1 ), generates a complex obligation, which includes two simple ones.
- Retribution. A loan agreement is always reimbursable, unlike a loan. Payment of interest is one of the essential terms of the transaction. Paragraph 1 of Art. 819 of the Civil Code of the Russian Federation establishes the obligation of the borrower to pay not only the main debt, but also the% accrued on the amount of funds issued.
It must also be said that each obligation arising under the agreement acts as the basis for the emergence of another. In this regard, the loan agreement is considered as a causal transaction (like a loan agreement). Meanwhile, in the agreement under consideration there is no basis for the emergence of obligations of the borrower that go beyond the scope of the agreement.
Transaction participants
In the first paragraph of Art. 819 of the Civil Code of the Russian Federation contains an indication of the special subject composition of the agreement. The parties to the transaction may be, in fact, the borrower and the banking (other credit) organization. The first is the debtor, the second, respectively, the creditor.
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.
Unlike a loan, which has both a consumer nature and an entrepreneurial nature, a loan agreement is an exclusively entrepreneurial transaction.
Any individual or organization may be a borrower.
The obligations of the borrower
When concluding an agreement, in accordance with Art. 819 of the Civil Code of the Russian Federation , the parties to the transaction have counter obligations. The sequence of repayment follows from the essence of the agreement. It cannot be changed by contract.
The main responsibilities of the borrower, according to Art. 819 of the Civil Code , should include:
- Refund of the amount provided within the period specified by the agreement.
- Payment of interest accrued on the loan. Their value is set once at the conclusion of the transaction.
Banking (credit) organization may establish additional obligations. For example, a borrower should not shy away from monitoring financial and business performance.
If the loan is of a targeted nature, the borrower must spend the funds in accordance with the stated objectives. In some cases, the bank may require collateral from the borrower.
The subject of the agreement is one of the essential conditions. It is the actions of the borrower aimed at the return of funds received. In this regard, the condition for the repayment of debt should be present in all loan agreements. Without its approval, the agreement is recognized as not concluded.
Features of the provision of funds
A loan can only be issued in cash or non-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, payment of interest and sanctions are made without restrictions.
In banking practice, there are many different ways to provide borrowed funds. A loan may be issued in a single order.
According to the general rules enshrined in the Regulation of the Central Bank No. 54-P in paragraph 2.1.1, the provision of funds to legal entities and individual entrepreneurs is carried out by crediting money to the account of the borrower. Transfer can be made to any account opened in any banking organization.
According to some experts, the norm of paragraph 2.1.1 of the above Regulation does not fully comply with Article 313 of the Civil Code, according to which the debtor can assign the execution of an obligation to a third party.
When disbursing funds "bypassing the borrower’s payroll account", the borrower, who, for example, is a debtor under a contract for the supply of goods, on the basis of a loan agreement entrusts the banking structure with the fulfillment of its obligation to pay for shipped products.
Clause 2.1.1 of the Regulation deprives the borrower of this opportunity. According to lawyers, this is an unreasonable restriction on the rights of participants in a turnover.
Disbursement moment
If the account of the borrower is opened in the bank providing the loan, then the amount is credited, bypassing the correspondent. account, through internal postings from the liabilities of a financial organization. From this it follows that the loan can be considered issued at the time the funds are credited to the client’s account.
If the account is opened 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 instructions.
A loan can be considered granted when the amount is credited to the correspondent account of a banking institution that services settlement operations of a client-borrower.
Bill loans
The practice of providing them is very common. The bill loan agreement contains one difference from the standard form agreement. The difference between them is that in the first case, the bank accepts the obligation to provide credit with promissory notes, the total face value of which corresponds to the size of the promised loan.
Initially, arbitration courts reacted extremely negatively to bill loans. Contracts are often recognized as invalid, because by virtue of Art. 819 of the Civil Code of the Russian Federation, only money, not securities, can be the subject of an agreement. The sun clarified the issue by recognizing bill of credit agreements in accordance with the law. According to the findings of the Court, such treaties are mixed in nature.
Credit line
This option of granting a loan implies the obligation of the bank to provide funds to the borrower in the future in amounts that do not exceed the limits agreed in advance, without special negotiations.
According to paragraph 2.2 of the Regulation of the Central Bank No. 54-P, credit lines can be of two types. The first Central Bank refers to any contract in accordance with which the borrower acquires the right to receive and use money for the agreed term if any of the following requirements is met:
- The total amount of the amount does not exceed the limit (maximum size) established by the contract.
- During the term of the agreement, the lump sum debt does not exceed the limit stipulated by the terms of the agreement.
An example of this type of credit line is the overdraft on the card account, which is provided to the debit card holder.
The second type is an agreement, under the terms of which both of the above limits are set for the borrower.
A credit line agreement can be qualified as a framework agreement, in which only certain essential conditions of a future transaction are agreed. Other provisions, including the clause on the total amount of the contract, participants can agree on subsequently.
The above limits are regarded as a kind of quota, within which the borrower has the right to demand a loan from the banking structure, and the credit institution, in turn, acquires the obligation to issue funds.