Art. 819 Civil Code: case law

The content of the loan agreement and its form are regulated by art. . 819 and 820 of the Civil Code of the Russian Federation . With the help of this document, like the loan agreement, credit relations between different subjects are formalized. Let us consider in more detail art. . 819 Civil Code of the Russian Federation with comments of lawyers .

Provisions of the norm

In part 1 of Art. описывается суть кредитного соглашения. 819 of the Civil Code of the Russian Federation describes the essence of the loan agreement. In accordance with it, a banking or other financial organization having the appropriate authority, undertakes 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, according to cl . , обязательство вернуть полученные средства и уплатить проценты, начисленные на них. 819 of the Civil Code , an obligation to return the funds received and pay interest accrued on them.

To the relations between the borrower and the credit organization the rules established by the pairs are applied. 1 Ch. 42, unless otherwise provided for by steam. 2 of the same chapter or does not follow from the essence of the agreement. This provision secures n . 2 tbsp. . 819 of the Civil Code of the Russian Federation .

Features of terminology

To indicate the money that the borrower receives under a loan agreement, in the normative acts of the Central Bank, in practice and in special publications, the term "loan" is used, in addition to the term "credit". These words are considered synonymous.

From this it follows that operations related to the issuance and repayment of a loan are called credit or loan. This use of words has developed historically and is carried out by tradition.

The name of the loan agreement loan does not indicate that it acts as a kind of agreement on gratuitous use (Article 689 of the Code).

Distinctive features of the agreement

Analysis of the definition of a loan agreement in Art. позволяет сделать вывод, что он является консенсуальным. 819 of the Civil Code of the Russian Federation allows us to conclude that it is consensual. This is different from the loan agreement.

The agreement becomes valid at the moment when the participants reach legal agreements on the essential terms of the transaction. They are fixed in the form established by law.

These circumstances stipulate the presence of the following distinctive features of the loan agreement:

1. Bilaterally binding nature. Conclusion of the agreement provided for by Art. ), порождает сложное обязательство, включающее в себя два простых. 819 Civil Code (paragraph 1 ), generates a complex obligation, which includes two simple.
2. Remuneration. The loan agreement is always onerous, unlike a loan. Payment of interest is one of the essential conditions of the transaction. Item 1 of Art. закреплена обязанность ссудополучателя выплатить не только основной долг, но и %, начисленные на сумму выданных средств. 819 of the Civil Code of the Russian Federation stipulates the obligation of the loan recipient to pay not only the principal debt, but also the% accrued on the amount of the disbursed funds.

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 treated as a causal transaction (like a loan agreement). Meanwhile, in the agreement under consideration, there is no basis for the occurrence of obligations of the borrower, which go beyond the scope of the agreement.

Participants in the transaction

In the first paragraph of Art. содержится указание на особый субъектный состав соглашения. 819 of the Civil Code of the Russian Federation contains an indication of the special subject composition of the agreement. Participants in the transaction may be, in fact, a borrower and a banking (other credit) organization. The first is the debtor, the second, respectively, the creditor.

As the latter, only such organizations that have a license issued by the CBR can act and have the right to be called a credit or banking structure.

Unlike a loan that has both a consumer character and an entrepreneurial, a loan agreement is an exclusively entrepreneurial transaction.

Borrower can be any individual or organization.

Obligations of the borrower

When concluding an agreement, in accordance with Art. , у участников сделки возникают встречные обязательства. 819 of the Civil Code of the Russian Federation , the participants of the transaction have counter obligations. The sequence of their repayment follows from the essence of the agreement. It can not be changed by an agreement.

To the main duties of the borrower, according to Art. , следует отнести: 819 Civil Code , it should be attributed:

1. Refund of the amount provided in the agreed time period.
2. Payment of interest accrued on credit. Their value is set once at the conclusion of the transaction.

A bank (credit) organization can establish additional obligations. For example, the borrower should not shy away from controlling the indicators of financial and economic activity.

If the loan is of a targeted nature, then the borrower is obliged to spend the funds in accordance with the declared purposes. In some cases, the bank may require the provision of collateral from the borrower.

As one of the essential conditions is the subject of the agreement. They are the actions of the borrower, aimed at returning the received funds. In this regard, the condition for the repayment of debts must be present in all loan agreements. Without its coordination, the agreement is recognized as not concluded.

Features of the provision of funds

A loan can be issued only in cash in a non-cash or cash form. The currency can be either foreign or national (rubles).

Operations in foreign currency between authorized financial organizations and residents related to the receipt and return of funds, payment of interest and sanctions are made without restrictions.

In banking practice, many different ways of lending have been developed. The loan can be issued in a one-off order.

According to the general rules set forth in the Regulation of the Central Bank No. 54-P in clause 2.1.1, the provision of funds to legal entities and entrepreneurs is carried out by transferring money to the borrower's account. The transfer can be made to any bank opened in any banking organization.

According to some experts, the norm of clause 2.1.1 of the abovementioned Regulation does not fully correspond to Article 313 of the Civil Code, according to which the debtor can impose the fulfillment of the assumed obligation on a third party.

When issuing funds, "bypassing the b / s borrower," the borrower, who is, for example, a debtor under the contract of delivery of goods, on the basis of a loan agreement, assigns to the banking structure the performance of its obligation to pay for shipped products.

Clause 2.1.1 of the Regulations deprives the borrower of this possibility. This, according to lawyers, is an unreasonable restriction of the rights of traders.

The moment of issuance of funds

If the p / s of the borrower is opened in the bank that provides the loan, the amount is credited, bypassing the correspondent account. Account, through internal postings due to the liabilities of the financial institution. From this it follows that the loan can be considered issued at the moment of crediting funds to the client's account.

If p / s is opened in another banking structure, the amount is transferred by a payment order. In this case, the moment of fulfillment of the obligation by the bank should be determined by the rules on the 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 structure that manages the settlement operations of the borrower client.

Bills of credit

The practice of providing them is very common. The contract for the issuance of a bill of exchange contains one difference from a standard form agreement. The difference between them is that in the first case the bank assumes the obligation to provide loans with simple promissory notes, the total value of which corresponds to the size of the promised loan.

Originally arbitration courts extremely negatively reacted to bill lending. The contracts were often recognized as invalid, because by virtue of Art. редметом соглашения могут выступать только деньги, а не ценные бумаги. 819 of the Civil Code of the Russian Federation, the only agreements that can be made are money only, not securities. Clarity was brought to the question by the Supreme Council, recognizing the agreements on promissory note lending with the relevant legislation. According to the Court's findings, such treaties are of a mixed nature.

Credit line

This option of granting a loan assumes the bank's obligation to provide the borrower with funds in the future in amounts not exceeding the agreed limits, without special negotiations.

According to paragraph 2.2 of the Central Bank Regulation No. 54-P, there are two types of credit lines. The first CB refers to any contract, according to which the borrower acquires the right to receive and use within the agreed period of money in fulfilling any of the following requirements:

1. The total amount of the amount does not exceed the limit (the maximum amount) established by the contract.
2. During the term of the agreement, the amount of one-time debt does not exceed the limit provided for in the agreement.

As an example of this type of credit line is an overdraft on the card account, which is provided to the holder of the debit card.

The second type is an agreement, under the terms of which both of the above limits are established for the borrower.

A credit line agreement can be qualified as a framework, in which only certain essential terms of a future transaction are agreed upon. Other provisions, including the item on the total amount of the contract, the participants can agree on subsequently.

The above limits are regarded as a kind of quota within which the borrower has the right to require the banking structure to issue a loan, and the credit organization, in turn, acquires the obligation to issue funds.