Review of judicial practice on controversial issues in the conclusion, execution and termination of a loan agreement. Essential terms of the loan agreement. Loan agreement between individuals Loan agreement characteristics essential conditions

full name of an individual, his passport details, address of registration and address of residence, if the addresses are different;
full name of the legal entity, on the basis of which it acts;
full name of the general director of the legal entity, its owner or other authorized person entitled to make transactions. If the parties are an authorized person, then the details of the power of attorney.

the subject of the agreement is the securities in which the loan is issued - bonds and bills;
Loan repayment period - the "shelf life" of the security in which the state loan was issued;
the borrower for this type of loan is the state;
the amount of interest - they may or may not be established;

ARISING OF OBLIGATIONS FROM THE LOAN AGREEMENT

Strictly speaking, in this sense, these elements are present in any monetary obligation (including those without the use of foreign currency). However, if the monetary obligation is expressed exclusively in rubles, the allocation of the currency of the debt and the currency of payment (which in this case are the same) in its composition is of no practical importance.

In accordance with Art. 432 of the Civil Code of the Russian Federation, the conditions on the subject of the contract and the conditions named in the law are essential. Therefore, if the court comes to the conclusion that the subject matter of the contract is inconsistent, such a contract will be recognized as not concluded and will not give rise to legal consequences for the parties.

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.

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.

The essence of the loan agreement

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 received by him of the same kind and quality (Clause 1, Article 807 of the Civil Code of the Russian Federation).

Loan- this is a written agreement, according to which the lender transfers money or valuables to the borrower under the obligation to return the received funds or material values within the prescribed period. If the amount of the loan exceeds the minimum wage of the Russian Federation by 10 or more times, then a written registration of the transaction is necessary. The contract must necessarily indicate the amount of funds transferred or the number of items, the return period, and in a number of cases, remuneration for the use of money.

Terms of the loan agreement between individuals and legal entities

The borrower transfers funds in a clearly established manner and amount. With an interest-free transaction, the amount can be returned ahead of schedule without the consent of the lender, but with one condition - unless otherwise provided by the agreement. If the loan is reimbursable, then the amount taken is allowed to be returned only with the approval of the party that issued the funds. When the terms are not specified, the borrower undertakes to return the object of the transaction to the lender within 30 days from the moment the latter makes this request.

Purpose loan agreement. The funds received are used to achieve certain goals.
Promissory note. With respect to this security, the owner has the right to demand payment of the obligation from the drawer.
Bond. Its holder has the right to receive not only the nominal value, but also the property equivalent.
Domestic state loan (government loan). In this case, the lender is a legal entity or a citizen, and the borrower is the Russian Federation.

Loan agreement

1. First of all, it should be noted that the legal purpose of the donor is the desire to give, respectively, the cause of the contract is free transfer of property. Therefore, the donation agreement should not contain any conditions on the property obligations of the donee. If there is a counter transfer of a thing or right or a counter obligation, the contract is not recognized as a donation, and the rules on the corresponding compensated contract, for example, on sale, exchange, are applied to it.

In some cases, the gift is a reversible transaction. So, the donor has the right to cancel the donation if the donee has made an attempt on his life, the life of one of his family members or close relatives, or intentionally caused serious bodily harm to the donor, as well as in some other cases.

The concept of a loan agreement

The subject of the loan agreement is money or other things determined by generic characteristics (number, measure, weight), i.e. things that do not have specific, individualizing features inherent only to them and therefore do not differ from other homogeneous things and are legally interchangeable. Also, the subject of the loan agreement may be foreign currency or currency values, if this does not contradict the current legislation.

- Loan repayment period. In cases where the term for repayment is not established by the loan 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).

Essential terms of the loan agreement

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 demand 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.

In addition to circumstances and situations, the text of any agreement includes such components as the addresses and details of the parties, in addition, the signatures of participants in civil legal relations. Based on such a criterion as the degree of importance, all the terms of the contract are divided into three large groups.

Essential terms of the loan agreement. They are:

The subject of the loan or other things that are determined by the signs of the generic order, that is, by weight or measure. The lender gives these things into possession of the second party in accordance with the concluded agreement. In addition to the item itself, the contract must indicate the valuation of the item, if it is it that is temporarily transferred to the ownership of the other party;

The obligation to return what was transferred according to the agreement, this legal norm is spelled out in the Civil Code of the Russian Federation.

Additional conditions in the loan agreement. They are:

The duration of the loan agreement, but in the event that the term is not set, as a general rule, the thing is transferred back within 31 days from the date of its presentation. The same goes for the amount of money;

Interest on the loan agreement. The agreement between the parties must contain such a condition. If the contract does not contain such a requirement for the payment of interest, then it does not become a gratuitous type. In these cases, the interest rate that currently exists in the seller's place of residence is used, and if the lender is a legal entity, the interest rate should be determined by bank interest.

Random terms of the loan agreement

Such conditions are those requirements and nuances that are included in the content of the agreement itself solely at the request of the parties. It should be noted that the main purpose of including random requirements in the text of the contract is that they carry an additional semantic load.

That is, they are designed to clarify such terms of the agreement as additional. From a legal point of view, the absence of random conditions in the text of the agreement itself in no way affects the recognition of the agreement as invalid. Based on this rule, random conditions are considered as the free will of the parties.

Attention! Material with changes as of 06/01/2018

The concept of a loan agreement

under a loan agreement one party (the lender) transfers or undertakes to transfer into the ownership of the other party (the borrower) money, things defined by generic characteristics, or securities, and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal number of things of the same kind received by him and quality or the same securities (Article 807 of the Civil Code of the Russian Federation).

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 specified by him.

Thus, except for the above case the parties may enter into loan agreements on the condition of a promise to transfer money after a period specified in the agreement. In this case, in the general case, the contract will be considered concluded from the moment the contract is signed, and not from the moment the funds are transferred.

Art. 317 of the Civil Code of the Russian Federation establishes that monetary obligations must be expressed in rubles (Article 140). A monetary obligation may provide that it is payable in rubles in an amount equivalent to a certain amount in foreign currency or in conventional monetary units (ecu, "special drawing rights", etc.) (indirect currency clause). The use of foreign currency, as well as payment documents in foreign currency, when making settlements on the territory of the Russian Federation for obligations is allowed in cases, in the manner and under the conditions determined by Federal Law No. 173-FZ of December 10, 2003 "On Currency Regulation and Currency Control" or in the manner prescribed by them.

The main features (signs) of the loan agreement:

object of the loan agreement are money, securities or other things defined by generic characteristics (replaceable things);
subject of the loan agreement- actions or obligations for the transfer by the lender and, in the future, for the return by the borrower of an appropriate amount of money equal to the number of things or securities received;
the use of money and other things determined by generic characteristics, which is possible only in the form of their consumption, implies that the borrower has powers to dispose of the object of the loan agreement;
The loan agreement may be:
- real character if the lender is a citizen (it is considered concluded only from the moment the lender actually transfers money or things to the borrower, determined by generic characteristics and serving as the object of the loan agreement);
- consensual character- in other cases.
the loan agreement may be (in accordance with clause 4):
- unilateral (one of the parties has only rights, while the other has only obligations);
- bilateral (in a bilateral obligation, each of the participants simultaneously acts as both a creditor and a debtor).

The specifics of the object of the loan agreement: money, securities or things defined by generic characteristics (i.e. replaceable things) also predetermine the peculiarity subject of the loan agreement a, consisting in the fact that the actions of the borrower to return to the lender the appropriate amount of money or an equal amount of things received should be recognized as such. In addition, in the general case, in a loan agreement, one can talk about a complex subject matter of the agreement, which includes two types of objects:

actions of the obligated party to transfer property and
the property itself.

real character loan agreement means that even if there is a written agreement between the borrower and the lender (citizen), according to which the latter has assumed the obligation to provide the borrower with a certain amount of money, securities or a number of things, the borrower does not have the right to require the lender to fulfill this obligation, since the loan obligation itself cannot be considered to have arisen until the moment the lender actually transfers money or other property into the ownership of the borrower.

consensual nature loan agreement means that if there is a written agreement between the borrower and the lender, according to which the latter has assumed the obligation to provide the borrower with a certain amount of money, securities or a number of things, the borrower has the right to demand that the lender fulfill this obligation.

Delimitation of a loan agreement from property lease and loan agreements:

actions of the debtor under the loan obligation (borrower) consist in the return to the lender of the wrong property what was received from the latter (as is the case with property hire and loans), but a sum of money equal to that received from the lender, or the same number of things determined by generic characteristics.

The basis for the emergence of a loan agreement can also serve as novation of another debt obligation. In accordance with Art. 818 of the Civil Code, by agreement of the parties, a debt arising from the sale, lease of property or other grounds may be replaced by a loan obligation; the replacement of a debt with a loan obligation is carried out in compliance with the requirements for novation (Article 414 of the Civil Code) and is carried out in the form provided for concluding a loan agreement (Article 808 of the Civil Code).

In the Civil Code, innovation is considered as one of the ways to terminate obligations. In accordance with Art. 414 the obligation is terminated by agreement of the parties to replace the original obligation that existed between them with another obligation between the same persons, providing for a different subject or method of performance (innovation); innovation is not allowed in relation to obligations to compensate for harm caused to life or health, and to pay alimony.

Scope of the loan agreement

In terms of its scope, a loan agreement covers all legal obligations under which one party transfers money or replaceable things to another, and the other undertakes to return the same amount of money or the same number of things.

The legislator himself expressed his attitude to the loan agreement and its role in regulating property turnover, defining an extremely wide scope for it, which cannot be limited either by subject composition or by objects falling under the definition of money and other things defined by generic characteristics, if only such restrictions are not provided for by special rules on the relevant subjects or objects of civil rights. This is evidenced, in particular, contained in Chap. 42 of the Civil Code of the norm on commodity and commercial credit, as well as on the possibility of novating any debt into a loan obligation (Article 818 of the Civil Code of the Russian Federation).

The rules on a loan agreement (after the rules on a loan agreement) are subject to application to any agreement that provides for the obligation of one party to provide the other party with things defined by generic characteristics (commodity loan agreement); These rules directly regulate the obligations of a commercial loan in the form of an advance payment, prepayment, deferment and installment payment for goods, works or services, found in any contract, the execution of which is associated with the transfer of money or other things defined by generic characteristics to the ownership of the other party (Art. article 822 and 823 of the Civil Code).

Place of the loan agreement in the system of contractual obligations

At the present time, when the norms of both the loan agreement and the loan agreement are placed in one chapter (Chapter 42 "Loan"), and even from a formal legal point of view, the ratio of these agreements (loan to loan) is determined according to the scheme "type - type", in the absence of a ban on organizations lending to each other without the participation of a bank, the combination of loan and credit agreements with bank deposit and bank account agreements, as well as settlement obligations into a single class of settlement and credit obligations, seems to have lost all practical meaning ( From a theoretical point of view, there were no grounds for this before).

A loan agreement, in terms of its purpose and in terms of the subject of the obligation arising from it, is much closer to property lease and loan agreements than to the same insurance or bank deposit agreements. After all, the loan agreement is distinguished from the above-mentioned agreements (property lease and loans) only by the fact that its object (money or things determined by generic characteristics that the borrower temporarily needs) things are interchangeable, not individually determined, as is the case in property lease and loan agreements. It is (and only!) This circumstance that determines all other differences between the loan agreement and the indicated agreements, namely: the transfer of property that can be used only through its consumption, into the ownership, and not into the possession and use of the borrower; the obligation of the borrower to return not the same thing that was received from the lender, but an equal amount of the same things received or an appropriate amount of money, etc. However, the proposed classification divides the named contracts, which are very similar (in terms of purpose and subject of obligations), into different classification classes of contractual obligations, which can hardly be recognized as correct.

Subjects of the loan agreement

The subjects of the loan agreement are:

lender (creditor);
borrower (debtor).

The general provisions on the loan (Section 1, Chapter 42 of the Civil Code) do not include in their composition any rules relating in a special way to the subjects of this agreement, which is designed to be applied to loan relations with the participation of both citizens and organizations. Therefore, it would be correct to conclude that, as a general rule, the role of a lender or borrower under a loan agreement can be any person recognized as a subject of civil rights having civil legal capacity and legal capacity:

individual,
entity,
state (the Russian Federation and a subject of the Russian Federation, as well as a municipality).

The restrictions on participation in loan legal relations that exist in real life concern only certain categories of participants in property turnover and do not stem from the law of obligations on a loan, but from the rules that determine the legal status of the relevant entities.

For example, legal entities operating in the organizational and legal form of institutions financed by the owner have property assigned to them on the basis of the right of operational management. The legal regime of property located on this limited property right with institutions includes a ban on its alienation: according to paragraph 1 of Art. 298 of the Civil Code, an institution is not entitled to alienate or otherwise dispose of the property assigned to it and property acquired at the expense of funds allocated to it according to the estimate. Consequently, the institution is not entitled to act as a lender in relation to the said property, since the transfer of it on loan is one of the ways to dispose of the relevant property. The exception is the income of the institution received by it from the entrepreneurial activity permitted by the owner of the property, as well as property acquired with such income that comes at the independent disposal of institutions (clause 2 of article 298 of the Civil Code): the relevant funds and property may be the object of a loan under the agreement a loan in which the institution acts as the lender.

Certain restrictions on participation in loan legal relations of the lender are also found in relation to another subject of the right of operational management - a state-owned enterprise, which has the right to alienate or otherwise dispose of the property assigned to it only with the consent of the owner of this property (paragraph 1 of article 297 of the Civil Code).

At the same time, the absence of a number of subjects (state and municipal enterprises, institutions) of the right of ownership to the property assigned to them cannot serve as an obstacle for them to conclude loan agreements as borrowers, with the only peculiarity that funds and other property, determined by generic characteristics , received by them under loan agreements, respectively, come into state or municipal ownership, and the borrowers have only the corresponding limited real rights to the relevant property: the right of economic management or the right of operational management.

For loan relations with the participation of legal entities - non-owners of property, an increased degree of risk for the creditor is characteristic.

There is also a specific type of loan agreement, in which only the state (the Russian Federation or a subject of the Russian Federation) can act as a borrower. This refers to a state loan agreement, under which the state acts as a borrower, and a citizen or legal entity acts as a lender. Such an agreement is concluded by acquiring by the lender of issued government bonds or other government securities certifying the right of the lender to receive from the borrower (the state) 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.

A state loan agreement may also be concluded in other forms provided for by budgetary legislation.

The rules on a state loan agreement also apply to loans issued by municipalities (Article 817 of the Civil Code).

Participants (but not subjects) of the contractual relations of the loan may be third parties associated with the lender or with the borrower in certain legal relations. This becomes possible, for example, in situations where the basis for the emergence of loan relations is the transfer (provision) to the borrower of a sum of money or other property determined by generic characteristics, not by the lender himself, but by his debtor under another obligation, or when the object of the loan is transferred not to the borrower himself, but on behalf of the latter to his creditor. In such cases, the actions of third parties give rise to a loan relationship between the lender and the borrower.

If the lender is a bank or other credit organization that undertakes to provide a loan in cash, then participation in these legal relations of the named entity (along with the consensual and bilateral nature of the agreement and the monetary form of the loan) is a necessary feature of the loan agreement as a separate type loan agreements.
It should be borne in mind that the participation of certain categories of entities in loan legal relations is accompanied by special legal regulation of the procedure for concluding a loan agreement.

Objects of the loan agreement

Perhaps the most significant feature of a loan agreement is the specifics of the object of this agreement, which are:

cash;
securities;
other things determined by generic characteristics.

The main feature of the loan object is that the use of both money and other things determined by generic characteristics is possible only through their consumption. Therefore, despite the fact that the purpose of the borrower remains the temporary use of the property transferred to him by the lender (in this sense, in terms of its purpose, the loan agreement is practically no different from the property lease and loan agreements closest to it), money and things determined by generic characteristics that make up the object loan agreements are transferred into the ownership (and not into possession and temporary use) of the borrower. Only under this condition, the borrower gets the opportunity to use them (ie, consume). In the system of objects of civil rights, both money and things defined by generic characteristics are movable, divisible and replaceable things.

Recognition of the object of the loan agreement as movable property (according to paragraph 2 of article 130 of the Civil Code, things that are not related to real estate, including money and securities, are recognized as movable property; registration of rights to movable things is not required, except in cases specified in the law) means that the right of ownership of the acquirer of the relevant things under the contract (in our case, the borrower) generally arises from the moment they are transferred (clause 1, article 223 of the Civil Code).

The presence of the quality of divisibility of the loan object (money and things defined by generic characteristics) means that the transfer of the relevant property to the borrower (as the basis for the emergence of loan legal relations) possible in parts. In this case, the loan obligation arises in respect of each part of the transferred property from the moment of its transfer. In addition, this circumstance (the divisibility of the object of the loan) creates the possibility of applying to relations related to the fulfillment by the borrower of his obligation, the rules on the fulfillment of the obligation in installments. According to Art. 311 of the Civil Code, the creditor has the right not to accept the performance of the obligation in parts, unless otherwise provided by law, other legal acts, the terms of the obligation and does not follow from the customs of business or the nature of the obligation.

Inherent in both money and other things defined by generic characteristics, the quality of substitutability means that such objects are always present in property circulation and, therefore, are available to its participants. The latter circumstance indicates that the borrower always has the opportunity to fulfill his obligation to the lender in a proper manner.

Money as an object of a loan agreement

The object of the loan agreement can be both cash and non-cash funds. Although, as noted earlier, in the legal literature it was suggested that only cash should be recognized as the object of a loan agreement, since non-cash funds, being by their legal nature rights of claim against a bank, can only be the object of a loan agreement concluded with bank.

However, the Civil Code does not restrict the use of non-cash money as an object of a loan agreement, as evidenced, in particular, by the rules on the borrower's fulfillment of its obligation to return the loan amount to the lender: the loan amount can be returned to the lender not only by transferring it to the latter, but also by crediting the relevant funds to his bank account (clause 3, article 810). In the latter case, we are talking, of course, about a situation where the object of the loan agreement is non-cash funds.

Currently, the role of the law that gives state banknotes (coins and banknotes of the Bank of Russia) the force of legal tender is performed by the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)", according to which the only legal tender in cash in the Russian Federation Federation are banknotes (bank notes) and coins of the Bank of Russia, which are unconditional obligations of the Bank of Russia and are required to be accepted at face value when making all types of payments, for crediting to accounts, deposits and for transfer throughout the Russian Federation (Article 29 ).

In accordance with paragraph 1 of Art. 140 of the Civil Code, the ruble is legal tender, mandatory for acceptance at face value throughout the Russian Federation. This provision applies equally to payments by both cash and non-cash payments. With regard to cash - coins and banknotes of the Bank of Russia - this means that they must be denominated in rubles.

In real property turnover, scope as an object of a loan, cash is mainly limited to loan legal relations that develop between citizens not related to their entrepreneurial activities. In loan legal relations with the participation of organizations, as well as citizens engaged in entrepreneurial activities, the so-called non-cash funds are usually used as the object of the loan. This circumstance is predetermined, in particular, by some rules contained in the Civil Code. So, in accordance with Art. 861 of the Civil Code, settlements with the participation of citizens, not related to their entrepreneurial activities, can be made in cash without limiting their amount in a non-cash manner. Settlements between legal entities, as well as settlements with the participation of citizens related to their entrepreneurial activities, are made in a cashless manner; settlements between these persons in cash can only be made within a specific amount determined by the Bank of Russia (currently such a limit is 60,000 rubles).

When the law refers to the transfer of money to the property of the borrower, it refers to both cash and non-cash funds (ie the right to money). However, it seems that this circumstance cannot indicate that non-cash funds and cash are two varieties of one object of civil rights - money, as is sometimes stated in the legal literature. On the contrary, cash and non-cash funds belong to different categories of objects of civil rights: cash - to things; non-cash funds - to liability rights of claim.

At the same time, it is also obvious that non-cash funds (the right to money) also have certain specific qualities that distinguish them from many other obligatory rights of claim: their abstractness, unconditionality, unlimitedness for a certain period, which allows the legislator in certain cases to extend to non-cash cash legal regime of cash. Therefore, for example, in relation to a loan agreement, according to which the money that serves as the object of the loan is transferred to the ownership of the borrower, we should not talk about the equality of objects (cash and non-cash money), but that in relation to both cash and non-cash money funds are subject to the same legal regime.

Foreign currency as an object of a loan agreement

The object of the loan agreement can be foreign currency and currency values, as evidenced by the norm contained in paragraph 2 of Art. 807 of the Civil Code, according to which 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 Art. Art. 140, 141 and 317 of the Civil Code.

The aforementioned articles contain rules stating that the ruble is legal tender, obligatory for acceptance at face value throughout the territory of the Russian Federation, and foreign currency can be used on the territory of Russia only in cases, in the manner and on conditions determined by law or in the prescribed manner. order (Article 140 of the Civil Code), as well as that the types of property recognized as currency values and the procedure for making transactions with them are determined by the law on currency regulation and currency control (Article 141).

In the development of these legal provisions, Art. 317 of the Civil Code provides that monetary obligations must be expressed in rubles, and the use of foreign currency and payment documents in foreign currency when making settlements on the territory of the Russian Federation for obligations is allowed in cases, in the manner and under the conditions determined by law or in the manner prescribed by it ( paragraphs 1 and 3 of article 317). However, along with the named rules arising from the provisions of Art. Art. 140, 141, Art. 317 of the Civil Code includes a rule that determines the possibility for the parties to provide in any monetary obligation (including, of course, in a loan agreement) a condition on the so-called currency clause. According to this norm, a monetary obligation may provide that it is payable in rubles in an amount equivalent to a certain amount in foreign currency or in conventional monetary units (ecu, "special borrowing rules", etc.); in this case, the amount payable in rubles is determined at the official exchange rate of the relevant currency or conventional monetary units on the payment date, unless a different exchange rate or another date for its determination is established by law or by agreement of the parties (clause 2 of article 317 of the Civil Code).

Consequently, in a money loan agreement, the loan amount can be expressed both in rubles and in foreign currency, or only in foreign currency. In the latter case, if the loan agreement is concluded between Russian residents, its execution by the borrower must nevertheless be carried out in rubles.

Despite the fact that foreign currency in the internal money circulation is not recognized as money, as noted by L.A. Lunts, "according to all legal systems, the obligation to pay foreign currency (since such an obligation is generally allowed by law) is discussed according to the rules established for monetary obligations. Such an obligation, in particular, is subject to the rule on interest, on the place of performance of a monetary obligation, and many other norms concerning monetary obligations in general. The economic significance of foreign currency in international settlements thus receives its legal expression in the fact that a number of norms established for monetary obligations are applied by analogy to obligations in foreign currency ... ".

In judicial arbitration practice, the question of the currency of the debt and the currency of payment arises only when the parties use foreign currency, as evidenced, in particular, by the explanations contained in the information letter of the Supreme Arbitration Court of the Russian Federation dated November 4, 2002 N 70 "On the application by arbitration courts of Articles 140 and 317 of the Civil Code of the Russian Federation". So, in paragraph 1 of this information letter, it is explained that when resolving the issue of in what currency the amounts of money subject to collection should be indicated in the judicial act, arbitration courts on the basis of Art. Art. 140 and 317 of the Civil Code, it is necessary to determine the currency in which the monetary obligation is expressed (debt currency), and the currency in which this monetary obligation must be paid (payment currency).

Loan agreement form

Analysis of Art. 807 of the Civil Code of the Russian Federation allows you to highlight the following obligations of the parties to the loan agreement regarding the objects of the material world that are the object of the loan:

the lender is obliged:
- transfer ownership of the object of the loan to the other party (borrower);
- demand the return of the object of the loan.
the borrower must:
- return the object of the loan to the lender

Both the transfer and the return of the loan object are carried out in the same quantity (size, amount) of things (securities, money) of the same kind and quality.

At the same time, it should be borne in mind that if, under a loan agreement, the lender undertook to lend

the lender has the right to refuse to perform the contract in whole or in part if there are circumstances that clearly indicate that the loan will not be returned on time;
the borrower 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 receipt of the loan, unless otherwise provided by law, other legal acts or the loan agreement, the borrower for which is a person engaged in entrepreneurial activity.

Unless otherwise provided by law or the loan agreement, the loan is considered returned:

at the time of its transfer to the lender, including
at the time of receipt of the corresponding amount of funds in the bank in which the bank account of the lender is opened.

Disputing a loan for lack of money

The loan agreement, being a bilateral transaction, can naturally be challenged by its parties and other interested parties. This refers to the possibility of applying to the loan agreement the grounds provided for by the Civil Code and the consequences of the invalidity of transactions (Articles 166-181).

The peculiarity of the legal regulation of a loan agreement is that the Civil Code includes traditional rules on the possibility of challenging a loan agreement due to its lack of money (Article 812). The borrower has the right to challenge the loan agreement for its lack of money, proving that money or other things were not actually received by him from the lender or received in a smaller amount than indicated in the agreement.

If the loan agreement must be made in writing (Article 808), 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, threat or a combination of difficult circumstances, as well as by the representative of the borrower in damage to his interests.

If a loan is contested due to lack of money, the amount of the borrower's obligations is determined on the basis of the amounts of money or other property transferred to him or to a third party indicated by him.

3.5

Loan agreements. 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.

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 support of the loan agreement and its terms, a borrower's receipt or other document may be presented, 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, and in cases expressly provided for by law or other legal acts, a loan agreement may be formalized by issuing and selling bonds.

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.

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.

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 its deposit in the account, in the second case, on the basis of an entry in the register of securities or by a record of the deposit of paper in the account.

Types of loan agreement. The Civil Code specifically distinguishes two types of loan agreement: target loan and state loan.

State (municipal) loan- this is an agreement in which the borrower is the Russian Federation, a subject 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).

Obligations of the borrower under the loan agreement.

The borrower under the loan agreement is obliged to:

1. Return to the lender the received loan amount.

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.

3. Use the borrowed funds strictly for specific purposes and ensure that the lender can exercise control over the intended use of the loan.

Contestation of a loan agreement.

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.

Seal

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