home Deposits Remote conclusion of a loan agreement. Invalid loan agreement. Types of loan agreements

Remote conclusion of a loan agreement. Invalid loan agreement. Types of loan agreements

Most Russians, when taking out a loan, believe the beautiful speeches of loan officers. But we must not lose our vigilance because bank employees are silent about many things. Contrary to the opinion of most consumers, it is still possible to get a loan without signing an agreement. To do this, banks use an offer - an offer from one person to another to enter into an agreement (in our case, a credit agreement) indicating all the essential conditions.

The role of the offer in lending

The mechanism for obtaining a loan, in this case, is somewhat different from the classical scheme and has nuances, which the borrower often learns about after the legal relationship has been formalized.

To quickly receive loan funds, some banks offer to fill out a loan application form, which, if accepted by a credit institution, acquires the status of a loan agreement. However, this is possible if the offer contains all the essential conditions (loan amount, interest, loan term, monthly payment amount...). To avoid problems and disagreements regarding lending conditions, banks prepare standard offers for future clients that contain the necessary information.

When submitting such an application form, the client must realize that from the moment it is signed, nothing depends on him. Now the bank will decide whether to approve his application or not and when to approve it. There are cases when, in an effort to get the desired amount as quickly as possible, a person submits an offer to several banks without realizing that if they are accepted, he will acquire several loans at once.

The applicant also has the right to withdraw the offer. But this must be done promptly, before the bank considers the application. The review is issued in writing in two copies (for the bank and the client). The bank employee puts a mark on the client’s copy indicating receipt of the document. The fact of the presence of such a document often plays a decisive role in disputes about lending (if the bank, without taking into account the client’s feedback, accepted the offer).

Actions of the bank on an accepted offer

After accepting the borrower’s application for a loan, the bank opens an account in the currency specified by the client and transfers funds. It should be noted that the bank’s demands to pay commissions for approving an offer, opening and servicing a loan account are illegal.

The bank informs the client in writing about its decision and attaches a loan repayment schedule to its letter. However, if the consumer lending offer provides for loan repayment through the annuity system (payment in equal payments), as well as the timing of monthly payments, then a repayment schedule may not be provided. In any case, after the final settlement with the bank, the client has the right to demand a certificate confirming his fulfillment of obligations under the loan.

How to terminate a credit relationship with a bank

From the moment the bank accepts the offer, the loan agreement gains legal force. And the client can terminate it in three ways:

repay the loan ahead of schedule with payment of interest for the actual use of funds. It should be noted that the bank does not have the right to establish penalties for early repayment;
file a claim to declare the contract not concluded. This option is suitable if the offer does not contain some essential conditions that are typical for a loan agreement. For example, if the bank did not provide the client with a repayment schedule and did not indicate the date of the monthly payment, but indicated only interest, the total amount of the loan, and the amount of the monthly payment, then the borrower has every chance of recognizing the agreement as not concluded in court;
terminate the contract in court. This method can be used by a client who is dissatisfied with the product provided to him. In this case, the reason can be any, for example, the determination of the monthly payment amount is incorrect, in the client’s opinion. The main objective of this procedure is to fix the debt and stop the bank from accruing interest for using the loan.

In order to avoid getting into unpleasant situations, it is necessary to read it first before signing any document. If any points are unclear, seek clarification from a specialist.

The concept of a loan agreement, its parties, subject, form, essential conditions

In accordance with Art. 819 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), under a loan agreement, a bank or other credit organization (lender) undertakes to provide funds (loan) to the borrower in the amount and on the terms stipulated by the agreement, and the borrower undertakes to return the amount of money received and pay interest on her.

Parties to the loan agreement. From this definition it follows that the parties to the loan agreement are the lender and the borrower, and the lender can only be a legal entity (bank or other credit organization) that has a license from the Central Bank of the Russian Federation (hereinafter referred to as the Central Bank of the Russian Federation) to carry out credit operations (one of the types of placement funds on the terms of repayment, payment, urgency). If the lender does not have the appropriate license, the loan agreement in accordance with Art. 173 of the Civil Code of the Russian Federation may be recognized by the court as invalid at the request of the creditor, its founder (participant) or the state body exercising control and supervision over the activities of the legal entity (for the creditor - the Central Bank of the Russian Federation), if it is proven that the other party to the transaction (borrower) knew or should have known about its illegality. Furthermore, in accordance with Art. 13 of the Federal Law “On Banks and Banking Activities”, at the request of the prosecutor, the relevant federal executive body authorized by federal law, or the Central Bank of the Russian Federation, the entire amount received as a result of operations without an appropriate license may be recovered from such a creditor. And the Central Bank of the Russian Federation has the right to file a claim with the arbitration court for the liquidation of a legal entity carrying out banking operations without a license.

Currently, the practice of providing cash loans on an ongoing basis by legal entities that are not banks or other credit institutions has become widespread. As a general rule, loans can be provided by any legal entity (including banks) without restrictions; licensing of this type of activity is not provided for by current legislation. At the same time, there is an opinion (which is fully shared by the author of this article) that if funds are placed on the terms of urgency, payment and repayment to an indefinite number of persons and on a regular basis, then this activity is subject to regulation by banking legislation and requires an appropriate license . In our opinion, these loans are nothing more than loans.

Despite the fact that the rules provided for a loan agreement apply to the relations of the parties under a loan agreement, a loan agreement has significant differences from a loan (including in terms of the subject composition, as mentioned above).

The subject of a loan agreement is only cash, in contrast to a loan agreement, under which other things defined by generic characteristics can be transferred into the ownership of the other party. Foreign currency may be the subject of a credit agreement and a loan agreement, subject to the rules of Art. 140, 141, 317 Civil Code of the Russian Federation. In accordance with paragraph 3 of Art. 9 of the Federal Law “On Currency Regulation and Currency Control” (No. 173-FZ dated November 21, 2003), foreign exchange transactions between residents and authorized banks related to the receipt and repayment of loans and borrowings, payment of interest and penalties under relevant agreements are carried out without restrictions .

Form of loan agreement. According to Art. 820 of the Civil Code of the Russian Federation, a loan agreement must be concluded in writing. Failure to comply with the written form entails the invalidity of the loan agreement. Such an agreement is considered void. It should be remembered that in accordance with Art. 434 of the Civil Code of the Russian Federation, an agreement in writing can be concluded by drawing up one document signed by the parties, as well as by exchanging documents via postal, telegraph, teletype, telephone, electronic or other communication, which makes it possible to reliably establish that the document comes from a party to the agreement. Thus, in order for the parties to have the opportunity to establish this reliability, they must first agree on the intended means of communication, methods of identifying the parties (mailing address, fax number, e-mail address, etc.) and the procedure for exchanging documents (determine deadlines, authorized persons, the procedure for the entry into force of an agreement concluded using the above means of communication). This agreement may be made in a written agreement drawn up as a single document. Other methods of concluding loan agreements are most often used in the interbank lending market. Essential terms of the loan agreement. In accordance with Art. 432 of the Civil Code of the Russian Federation, an agreement is considered concluded if an agreement is reached between the parties in the form required in appropriate cases (for a loan agreement - in writing) on all the essential terms of the agreement. For a loan agreement, this condition is the loan amount. The term of use of the loan, the interest rate for use, the procedure for paying interest, the amount of penalties for violating the terms of repayment of the loan and interest are also recognized as significant terms of the loan agreement, but in their absence, the loan agreement will not be considered unconcluded.

The Civil Code of the Russian Federation establishes that a loan agreement is concluded on payment terms (in contrast to a loan agreement, which may provide for the use of the loan subject without paying interest). The parties must establish in the agreement the interest rate for using the loan and the procedure for paying interest. However, if the interest rate is not specified in the loan agreement, in accordance with Art. 809 of the Civil Code of the Russian Federation, the amount of interest is determined by the bank interest rate (refinancing rate) existing at the location of the lender on the day the borrower pays the loan amount or its corresponding part. If there is no agreement in the loan agreement on the timing of interest payments, interest payments are paid monthly until the day the loan is repaid.

Can any fees be charged to the borrower when issuing a loan?

Current legislation provides for only one type of payment for using a loan - interest. It is assumed that the amount of interest charged should cover, among other things, all the lender’s expenses associated with issuing the loan. At the same time, charging a commission for maintaining a loan account, which is used to reflect the formation and repayment of loan debt in the bank’s balance sheet, has become widespread in banking practice. However, loan accounts are not bank accounts within the meaning of the Civil Code of the Russian Federation, regulations of the Central Bank of the Russian Federation dated August 31, 1998 No. 54-P “On the procedure for the provision (placement) of funds by credit institutions and their return (repayment)” (hereinafter referred to as Regulation No. 54-P) , dated December 5, 2002 No. 205-P “On the Rules for maintaining accounting records in credit institutions located on the territory of the Russian Federation.” Thus, maintaining a loan account is not a banking transaction. In this regard, it seems unlawful to charge the borrower a fee for maintaining a loan account (that is, for the bank to fulfill its responsibility for maintaining records). In cases where the parties have not established a loan repayment period in the loan agreement, the loan amount must be repaid by the borrower within thirty days from the date the lender submits a request to repay the loan (Article 810 of the Civil Code of the Russian Federation).

If in the loan agreement the parties did not provide for penalties for violating the terms of repayment of the loan, then according to Art. 811 of the Civil Code of the Russian Federation, interest is payable on the amount of a loan not repaid on time in the amount provided for in clause 1 of Art. 395 of the Civil Code of the Russian Federation, from the day when it should have been returned until the day it is returned to the creditor, regardless of the payment of interest for using the loan.

As practice shows, loan agreements concluded by banks contain many other important conditions for the parties to the loan agreement, namely:

provision by the borrower of certain security for the fulfillment of obligations to repay the loan and pay interest for using the loan;
targeted use of the loan and the procedure for monitoring the targeted use of the loan;
the possibility and procedure for changing the interest rate for using a loan;
penalties for violation of deadlines for payment of interest and repayment of the loan or part thereof;
the obligation of the borrower to provide information on its financial condition and changes in management bodies at a certain frequency;
procedure and terms of loan provision;
loan provision and repayment schedule (if the loan is provided and repaid in installments);
possibility and procedure for early repayment of the loan;
grounds for early claim of the loan by the creditor and other conditions at the discretion of the parties to the loan agreement.

The parties to the loan agreement should use unambiguous language and conditions in its text, excluding the possibility of different interpretations, taking into account that in the event of a dispute in accordance with Art. 431 of the Civil Code of the Russian Federation, when interpreting the terms of a contract, the court takes into account the literal meaning of the words and expressions contained in it.

Rights and obligations of the parties to the loan agreement

Based on the loan agreement, the lender undertakes to provide funds (loan) to the borrower in the amount and on the terms stipulated by the loan agreement, and the borrower undertakes to return the specified funds within the prescribed period, as well as pay interest for using the loan in the manner prescribed by the loan agreement.

Article 821 of the Civil Code of the Russian Federation provides for the right to refuse to provide or receive a loan. The lender has the right to refuse to provide the borrower with the loan provided for in the loan agreement, in whole or in part, if there are circumstances clearly indicating that the amount provided to the borrower will not be repaid on time. The lender's refusal to provide a loan should be considered as termination of the loan agreement in whole or in part (clause 3 of Article 450 of the Civil Code of the Russian Federation).

The legislation does not provide for other grounds for a lender’s refusal to provide a loan, but they may be provided for by agreement of the parties. If the lender’s refusal to provide a loan occurs in the absence of the above grounds, then the lender is liable to the borrower in the form of compensation for losses and in the form of a penalty, if it is provided for in the loan agreement.

The borrower has the right to refuse to receive a loan in whole or in part by notifying the lender before the deadline established by the loan agreement, unless otherwise provided by law, other legal acts or the loan agreement, which also entails termination of the loan agreement in whole or in part.

If a loan agreement is concluded with the condition that the loan be used for certain purposes, then the borrower is obliged to ensure that the lender can exercise control over the intended use of the loan amount (Article 814 of the Civil Code of the Russian Federation). If the borrower violates the obligation to use the loan for the intended purpose, as well as in the event of failure to provide the lender with the opportunity to exercise control over the intended use, the lender has the right to demand early repayment of the loan and payment of interest due on the loan amount, unless otherwise provided by the loan agreement.

Article 813 of the Civil Code of the Russian Federation also gives the lender the right to early reclaim a loan from the borrower if the latter fails to fulfill the obligations stipulated by the loan agreement to ensure the repayment of the loan amount, as well as in the event of loss of the collateral or deterioration of its conditions due to circumstances for which the lender is not responsible. In addition, according to paragraph 2 of Art. 811 of the Civil Code of the Russian Federation, the lender has the right to demand early repayment of the entire remaining loan amount along with the interest due if part of the loan is not repaid on time (if the agreement provides for repayment of the loan in parts).

A loan agreement may contain the right of the lender to request the loan early in other cases, for example, in the event of a significant deterioration in the financial condition of the borrower (the criteria for such deterioration must be enshrined in the loan agreement and supported by documents), in the event of non-payment (late payment) of interest on the loan of one or more times, in case of failure to provide documents confirming the financial condition of the borrower, if this obligation of the borrower is provided for in the loan agreement. The specified conditions must be objective and specific. The fact of violation of obligations giving the lender the right to demand early repayment of the loan must be documented.

The loan agreement may provide for other rights and obligations of the parties. Among them is the possibility of early repayment of the loan by the borrower. In this case, as a rule, higher interest rates for using a loan are established compared to interest rates for a loan without the borrower’s right to early repayment. This condition is absolutely legal, since the lender, when issuing a loan, expects to receive a certain income in the form of interest for the established period of using the loan, which will be less than planned if the borrower repays the loan early.

Types of loan agreements

The types of loan agreements are defined in Regulation No. 54-P as amended by Regulation No. 144 dated July 27, 2001. Clause 2.2 of Regulation No. 54-P provides that the provision (placement) of funds by the bank to bank clients is carried out in the following ways:

a one-time transfer of funds to bank accounts or the issuance of cash to a borrower - an individual. In this case, a one-time loan agreement is concluded;
opening a credit line (by credit line, Regulation No. 54-P means a credit agreement, which in its economic content differs from the terms of the agreement providing for a one-time (one-time) provision of funds to the borrower). The following types of agreements can be concluded:
- an agreement defining the total (maximum) amount of loans that can be provided to the borrower under an open credit line (issuance limit);
- an agreement establishing the amount of the borrower’s one-time debt to the lender, which cannot be exceeded on any day of the agreement (debt limit) - the so-called revolving (revolving) line of credit;
- an agreement containing both of the above conditions - both the debt limit and the issuance limit;
provision of an overdraft - crediting the bank account of the client-borrower (if there is insufficient or no funds on it) and payment of settlement documents from the bank account of the client-borrower, if the terms of the bank account agreement provide for the specified operation (Article 850 of the Civil Code of the Russian Federation). In this case, the lender sets the maximum amount for which the account can be credited (overdraft limit) and the period during which the loan must be repaid;
participation of the bank in the provision (placement) of funds to the borrower on a syndicated (consortial) basis;
by other means that do not contradict current legislation and Regulation No. 54-P.

The procedure for concluding a loan agreement

The loan is provided by the bank after a thorough analysis of the borrower’s production activities, his financial condition, solvency, methods of ensuring the fulfillment of obligations offered by the borrower, the structure of his property, the purpose for which the loan is obtained, the intended procedure for using the funds received as a loan, possible sources of repayment loan, credit history of the borrower, etc.

On June 1, 2005, the Federal Law of December 30, 2004 No. 218-FZ “On Credit Histories” came into force, the purpose of which is to create and define conditions for the formation, processing, storage and disclosure by credit history bureaus of information characterizing the timely fulfillment by borrowers of their obligations under loan (credit) agreements, increasing the security of lenders and borrowers due to a general reduction in credit risks, increasing the efficiency of credit institutions. However, the information provided for by this Law will be provided by credit institutions to the credit history bureau only in relation to borrowers who have agreed to its provision, and therefore it appears that the security and efficiency of lenders will increase very little.

One of the most important procedures when deciding whether to grant a loan is conducting a legal examination of the borrower’s constituent and other documents.

The objectives of such an examination are to determine the legal capacity of the borrower and other participants in the transaction (mortgagors, guarantors, guarantors), verify the authority of the representatives of the borrower and other participants in the transaction to enter into relevant agreements, and analyze credit and security transactions for compliance with their legislation.

The list of documents and the form in which they must be presented is determined by each lender independently and brought to the attention of the borrower. To eliminate the risk of document forgery, it is advisable to require notarized copies of documents or copies certified by those persons (authorities) who signed (approved, accepted, registered) the document.

The purpose of conducting a legal examination is to prevent the conclusion of a credit transaction that is invalid for various reasons and to apply the consequences of the invalidity of the transaction.

Thus, obtaining a loan by a budgetary institution from credit organizations is prohibited (clause 8 of Article 161 of the Budget Code of the Russian Federation (hereinafter referred to as the Budget Code of the Russian Federation) as amended by Federal Law No. 182-FZ of December 28, 2004; previously this provision was regulated by Article 118 of the Budget Code of the Russian Federation) . Thus, a loan agreement concluded with a budgetary institution, in accordance with Art. 168 of the Civil Code of the Russian Federation is a void transaction as it does not comply with the requirements of the law - the Civil Code of the Russian Federation. The consequences of invalidity will be the following: each party is obliged to return to the other party everything received under the transaction, that is, the institution will be obliged to return to the lender the amount of the loan received (without paying interest for using the loan), and the lender will have the right to demand payment of interest on the loan amount at the refinancing rate in in accordance with Art. 395 of the Civil Code of the Russian Federation for the illegal use of other people's funds. This case is confirmed by arbitration practice. Thus, the Arbitration Court of Moscow, considering the case on the claim of the Moscow Industrial Bank JSCB against the Administration of the President of the Russian Federation for the recovery of $162,706.84 as interest for the use of other people's funds, recognized the counterclaim of the defendant (Administration of the President) as a loan agreement, concluded between the specified persons, an invalid transaction due to its nullity (case No. A40-25352/02-29-270). The Presidential Administration is a federal executive body that operates at the expense of the federal budget, and in accordance with Presidential Decree No. 609 dated May 29, 1998 “On additional measures to reduce the financial debt of federal executive bodies and state extra-budgetary funds,” federal bodies are prohibited raising borrowed funds by attracting loans and borrowings, except in cases where such raising is not expressly established by the Government of the Russian Federation. The Government of the Russian Federation did not give permission to receive this loan. In addition, according to paragraph 1 of Art. 118 of the Budget Code of the Russian Federation, budgetary institutions do not have the right to receive loans from credit organizations. The court applied the consequences of the invalidity of the loan agreement, returning to the parties everything received under the transaction. Satisfying the requirement of the Presidential Administration, the court proceeded from the fact that when applying the consequences of the invalidity of a credit transaction, the party that used the credit funds is obliged to return the funds received to the creditor, as well as pay interest for the use of someone else’s funds on the basis of paragraph. 2 tbsp. 167 of the Civil Code of the Russian Federation for the entire period of use of these funds. This conclusion corresponds to paragraph 29 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 8, 1998 No. 13/14 “On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people’s funds.”

Will it be possible to actually recover these funds from a budgetary institution? In accordance with paragraph 2 of Art. 120 of the Civil Code of the Russian Federation, an institution is liable for its obligations with the funds at its disposal. If they are insufficient, the owner of the relevant property bears subsidiary liability for the obligations of the budgetary institution. Taking into account the targeted nature of funds received by a budgetary institution from the budget, as well as the norms of Art. 238, 239, 255 of the Budget Code of the Russian Federation, it seems unlikely that funds will be recovered from a budgetary institution if the consequences of the invalidity of a credit transaction are applied, even if there is a court decision.

When deciding whether to provide a loan to any legal entity, it is necessary to make sure that such a legal entity is registered in the Unified State Register of Legal Entities, analyze its constituent documents for legal capacity and the structure of governing bodies to determine the body authorized to make a decision on receiving a loan and sign a loan agreement. In this case, it is mandatory to check whether the term of office of the specified body has expired and whether it was properly elected (appointed). For this purpose, the borrower is requested to provide copies of protocols (decisions) on the election (appointment) of this body. In cases provided for by current legislation or the constituent documents of a legal entity, the authorized body makes a decision on the borrower receiving a loan, a duly certified copy of which is presented to the lender. The specified decision must contain all the conditions of the loan received that are essential for the given transaction (amount, term, interest rate, type of collateral, intended use of the loan and other conditions recognized by the parties to the loan agreement as essential). Obtaining a loan by state unitary enterprises In accordance with Art. 24 of the Federal Law of November 14, 2002 No. 161-FZ “On State and Municipal Unitary Enterprises”, a unitary enterprise has the right to borrow (including in the form of loans under agreements with credit institutions) only in agreement with the owner of the property of the unitary enterprise of the volume and direction of use of the attracted funds. The procedure for borrowing by unitary enterprises is determined by the Government of the Russian Federation, government bodies of constituent entities of the Russian Federation or local government bodies.

The procedure for borrowing by the Government of the Russian Federation and the majority of executive authorities of the constituent entities of the Russian Federation has not been approved. In the absence of the specified Procedure, a transaction to obtain a loan by a state or municipal unitary enterprise may be declared invalid in accordance with Art. 168 Civil Code of the Russian Federation. Nevertheless, unitary enterprises turn to credit organizations to obtain loans necessary to carry out their activities.

In addition, the Federal Law “On State and Municipal Unitary Enterprises” provides that transactions of unitary enterprises in which their managers are interested are major transactions (Articles 22, 23), as well as transactions for the provision of guarantees and the pledge of real estate (Article 18) must also be carried out by unitary enterprises with the consent of the owner of the property of the unitary enterprise. This must be remembered when concluding surety agreements and collateral agreements with unitary enterprises as security for the fulfillment of borrowers’ obligations.

In addition, one should take into account the special legal capacity of a unitary enterprise (Article 3 of this Law) - the ability to have civil rights corresponding to the subject and goals of its activities provided for in the charter of this unitary enterprise, as well as the fact that unitary enterprises can be created in cases specifically provided for in Art. 8 of the said Law. From the above it follows that the opportunity to act as a guarantor and pledgor as security for the fulfillment of obligations of a third party should be provided for in the charter of a unitary enterprise. Of interest is the norm contained in paragraph 3 of Art. 18 of this Law. It provides that a state or municipal enterprise disposes of movable and immovable property only within the limits that do not deprive it of the opportunity to carry out activities, the goals, subject and types of which are determined by the charter of such an enterprise. Transactions made by a state or municipal enterprise in violation of this requirement are void.

Let's consider this example. A unitary enterprise engaged in the air transportation of passengers and having three passenger aircraft under its economic control, upon receiving a loan from a bank, pledges these aircraft as collateral. If this enterprise fails to fulfill its obligations to repay the loan, the aircraft may be foreclosed on and they will be sold in the manner prescribed by current legislation. Thus, when concluding such transactions with a unitary enterprise, it is necessary to assess to what extent the intended collateral is involved in the production process and whether its alienation will lead to the impossibility of the unitary enterprise carrying out its statutory activities. Despite the fact that the pledge itself is not a transaction for the alienation of property, the sale of the pledge may be a void transaction, and, therefore, such a pledge cannot be regarded as proper security.

When lending to unitary enterprises, it is important to determine the owner of the property of the unitary enterprise in order to verify the validity of the submitted consent to the transaction. Thus, clause 1 of the Decree of the Government of the Russian Federation dated December 3, 2004 No. 739 “On the powers of federal executive authorities to exercise the rights of the owner of the property of a federal state unitary enterprise” stipulates that the federal executive authorities in relation to federal state unitary enterprises subject to preservation in federal ownership or included in the forecast plan (program) for the privatization of federal property, if the shares of joint-stock companies created through their transformation are intended to be added to the authorized capital of other joint-stock companies or remain in federal ownership, carry out, among other functions, coordination of major transactions, as well as transactions related to the provision of loans, guarantees, receipt of bank guarantees, other encumbrances, assignment of claims, transfer of debt, borrowing.

At the same time, federal executive authorities must notify the Federal Agency for Federal Property Management of decisions made on the above issues within 24 hours from the date of adoption. The latter coordinates the above transactions in relation to other federal state unitary enterprises.

Lending to joint stock companies and limited liability companies

When lending to joint stock companies and limited liability companies, it is necessary to evaluate the loan transaction (or collateral or guarantee transaction) for the presence of interest in its completion and determine whether it is large (Articles 78, 79, 81–84 of the Federal Law “On joint-stock companies" and Articles 45, 46 of the Federal Law "On Limited Liability Companies"). These transactions are recognized by the laws mentioned above as voidable transactions, that is, the decision on their invalidity must be recognized by the court on claims of the company or participant, or the company or shareholder, respectively. The invalidity of these transactions is proven by the plaintiffs in court. Claims to declare such transactions invalid and to apply the consequences of their invalidity can be brought within a year from the day when the plaintiff learned or should have learned about the circumstances that are the basis for declaring the transaction invalid (Clause 2 of Article 181 of the Civil Code of the Russian Federation).

In judicial practice, there are a large number of examples of invalidation of large transactions and interested-party transactions concluded by joint-stock companies and limited liability companies in violation of current legislation (see, for example, the appendix to the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 13, 2001 No. 62 “ Review of the practice of resolving disputes related to the conclusion by business companies of major transactions and transactions in which there is an interest”, as well as Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 No. 19 “On some issues of application of the Federal Law “On Joint-Stock Companies”).

It should be remembered that the invalidity of a loan agreement entails the invalidity of the obligation securing it, unless otherwise established by law (clause 3 of Article 329 of the Civil Code of the Russian Federation). Thus, if the loan agreement is declared invalid, including on the grounds discussed above, the collateral (guarantee, pledge, other collateral other than a bank guarantee) will be lost. In accordance with paragraph 2 of Art. 167 of the Civil Code of the Russian Federation, if the transaction is invalid, each party is obliged to return to the other party everything received under the transaction (bilateral restitution). The borrower must return the loan amount to the lender, as well as interest in accordance with Art. 395 of the Civil Code of the Russian Federation, and the lender - the interest received from the borrower for using the loan.

Procedure for granting a loan

As noted above, the lender’s duty is to provide funds (loan) to the borrower in the amount and on the terms provided for in the loan agreement.

In accordance with clause 2.1 of Regulation No. 54-P, the bank provides funds in the following order:

Regulation No. 54-P does not allow the possibility of transferring the loan amount to the accounts of third parties.

In the loan agreement, it is important to determine what is the moment of granting the loan - the moment the lender fulfills its obligation (for example, the moment the loan is credited to the borrower’s account opened with the creditor bank, or the moment the loan is credited to the correspondent account of another bank in which the borrower’s account is opened), since from this moment the term of using the loan will be calculated.

The term of use of the loan is calculated according to the rules established by Chapter. 11 of the Civil Code of the Russian Federation. Amendment and termination of the loan agreement, termination of obligations under the loan agreement

In accordance with Art. 450 of the Civil Code of the Russian Federation, amendment and termination of the contract are possible by agreement of the parties, unless otherwise provided by the Civil Code of the Russian Federation, other laws or the contract. Thus, the parties to the loan agreement may provide in the agreement the possibility of unilaterally changing its terms, which is confirmed by the norm of Art. 310 of the Civil Code of the Russian Federation, which allows for a unilateral change in the terms of an obligation related to the implementation of entrepreneurial activities by its parties in cases provided for by the agreement, unless otherwise follows from the law or the essence of the obligation. Based on this, the bank has the right, for example, to unilaterally change the interest rate for the use of a loan by a legal entity that received a loan in connection with its business activities, or by an individual - an individual entrepreneur. At the same time, the loan agreement must describe objective conditions, the occurrence of which will allow the lender to unilaterally change the interest rate (for example, changing the refinancing rate by a certain percentage, the ratio of the interest rate level to the level of the refinancing rate), as well as the procedure for such a change (terms and methods notifications to the borrower, dates for the changes to come into force).

When the loan matures, the loan must be repaid by the borrower. In accordance with Art. 407 of the Civil Code of the Russian Federation, the obligation is terminated in whole or in part on the grounds provided for by the Civil Code of the Russian Federation, other laws, other legal acts or an agreement. Regulation No. 54-P provides for the following methods of loan repayment (termination of obligation by fulfillment):

In addition to termination of the obligation by fulfillment, termination of the borrower’s obligation to repay the loan (pay interest) is also possible in other ways provided for in Chapter. 26 of the Civil Code of the Russian Federation: by providing compensation in return for execution, offset, novation, debt forgiveness, etc.

By novation, the borrower's obligation to the lender can be terminated, for example, in the case when the borrower issues his bill of exchange to the lender. Thus, the obligation to repay the loan is replaced by the borrower's obligation to pay the bill issued by him upon the maturity date specified on the bill.

Offsetting can be used to terminate the borrower's obligations in the case where the lender, for example, has an obligation to the borrower to return the deposit amount and the deadline for returning the deposit has arrived (time deposit) or is determined by the moment of demand (demand deposit).

The borrower may transfer to the lender, in exchange for fulfilling the obligation to repay the loan, property belonging to the borrower. Such property may also include property that was the subject of pledge as security for the repayment of the loan, which at the time of transfer as compensation must be free of pledge (that is, the pledge agreement must be terminated). It should be borne in mind that the owner of such property must be the borrower, and not a third party who was the mortgagor (Article 335 of the Civil Code of the Russian Federation). In accordance with Art. 409 of the Civil Code of the Russian Federation, a compensation agreement is concluded between the parties to the terminated obligation (in relation to a loan agreement - between the lender and the borrower). If there is property that can be the subject of compensation from a third party, the specified person may enter into a guarantee agreement with the lender as security for the borrower’s obligations under the loan agreement and terminate his obligations under the guarantee agreement with compensation. The borrower's obligation to repay the loan can be fulfilled by a third party if the borrower has entrusted the fulfillment of his obligation to the specified person (Article 313 of the Civil Code of the Russian Federation).

If the borrower fails to fulfill his obligation to repay the loan, the lender has the right to foreclose on the collateral (if the obligation to repay the loan was secured by collateral) or present a demand for fulfillment to the guarantor or guarantor (if the obligation to repay the loan was secured by a surety or guarantee).

Having concluded a loan agreement, did you realize that the document was signed on unequal terms? What is the right thing to do in such a situation and in what cases is it possible to cancel the transaction? You will learn about this in this article.

In what cases is it possible to invalidate a loan agreement?

Only a court can annul a contract. The judge makes a decision based on consideration of all aspects of the case, state regulations, as provided for in Art. 166–181 Civil Code of the Russian Federation. These include the following situations:

If the agreement with the bank was concluded as a result of the client’s mistake. That is, credit experts did not fully disclose the entire essence of the agreement or deliberately concealed some important aspects of the transaction. Then, based on Russian legislation, it can be considered that the client was misled and the contract can be challenged.
If any of the terms of the debt agreement are contrary to human rights and the Constitution.
If the transaction was concluded with a person who is incapacitated.
If a person was forced to sign an agreement by force or with the help of threats and pressure.
If the money was not received by the borrower in full or was not issued at all. In this case, the transaction can be challenged on the basis of its lack of funds under Article 812 of the Civil Code of the Russian Federation.

Voidable transactions or consequences of violations of the loan agreement

A loan is a two-way transaction. Russian legislation establishes standards not only for individuals who enter into an agreement. Requirements are officially presented to the content, form of the document and the goals of the parties when applying for a loan. In cases of violations of the law, the transaction can be challenged in arbitration or civil litigation. Often, failure to comply with standards when concluding a contract has certain consequences. Such contracts include:

In order to challenge a loan transaction, you need to write and submit a statement of claim to the bank. In it you must indicate:

your passport details (registration address, actual residential address, passport series and number, who issued the document and when);
an identification number;
your contact phone number;
bank coordinates (TIN, Central Bank license number, legal address);
contact details of all individuals who have anything to do with the dispute with the bank;
the whole essence of the dispute that has arisen;
your demands to the court;
signature and date.

Changing the loan agreement: under what conditions is it possible?

Both the borrower and the lender can change the terms of the loan transaction. New conditions must not contradict the law and human rights. Changes to the contract are made by mutual agreement of the parties. So, it is possible to change the terms of the loan agreement in the following cases:

As practice shows, not all borrowers carefully study every clause of the contract. Often changes in contractual terms from the creditor are unexpected for the debtor. In such cases, it is important to understand that the bank is obliged to warn you and inform you in detail about all changes in the clauses of the debt contract. If this does not happen, you can demand compensation for moral damages and revision of the terms of the loan agreement in court proceedings.
To avoid penalties and fees, always try to repay your loan on time and keep the originals of all payment receipts.
Thoroughly study your rights and obligations under the agreement with the bank.
Remember that you are responsible for meeting or not meeting the terms of your loan. Its violation entails appropriate consequences (fines, court proceedings, etc.).

Individuals and credit institutions enter into agreements for the provision of certain services. They can be divided into two types:

Bank account maintenance agreement.
Bank deposit agreement.

Bank deposit agreement

An agreement concluded between a credit institution and a citizen expressing a desire to open is called a deposit agreement. It involves transferring funds for storage in order to generate income. In this case, the bank undertakes to return the deposit amount to the client and pay interest for the use of funds. The role of a depositor can be either an individual or a legal entity.
The agreement must be recorded by issuing a savings book or other document confirming the transaction. The deposit must be issued upon the client's first request. The amount of interest is established by the agreement; if the interest rate changes, it begins to apply from the next month after the change.

Remote banking agreement

Such an agreement is concluded by a bank client who wishes to use an electronic service system, or Internet banking. Payment for the DBS agreement is made according to bank tariffs, the amount is deducted from the client’s accounts. Actions take place from the moment of signing until the official statement of termination. The application must be submitted on paper. System services may include:

Informing the client about receipts and expenditure transactions in the form of a text message.
Payment for services and goods through online payments.

Termination of a banking agreement

There are several ways to terminate an agreement with a bank, but it is not always so easy to do.

The agreement can be canceled by agreement of the parties if the financial institution does not object.
According to the court decision, in this case it is necessary to pay a state fee of 200 rubles and draw up a statement of claim.
The contract can be terminated unilaterally, but this clause must be specified in the contract.

Universal banking service agreement

Regulates the general rules and conditions for the provision of services to individuals. These include:

Servicing international accounts and issuing them.
Opening and servicing of deposit accounts.
Execution of operations using remote maintenance.
Renting a safe deposit box, maintaining metal accounts.

To sign the agreement, you need to visit the bank office and sign the agreement. UDBO facilitates transactions on its accounts and deposits; all you need to do is fill out an application for the service.

The universal banking service agreement is designed to improve the quality of services provided .

Forms of banking agreements

The banking system provides for several forms of agreements:

Loan agreement - the financial organization undertakes to provide funds in the amount and terms specified in the agreement. And the borrowed citizen will return the funds to the bank and pay additional interest for using the finances.
Loan agreement - the lender transfers funds and property into the ownership of the borrower for the period specified in the agreement. The borrower undertakes to repay what was received in full.
Factoring is the assignment of a monetary claim to a third party. The contract is paid and reciprocal.
Bank account and deposit agreement. Under an account maintenance agreement, the financial institution agrees to open and deposit funds as they become available. Transfer them to organizations and citizens. The deposit agreement provides for the storage of funds by the bank, with subsequent return and payment of interest on the deposit.

A banking agreement is evidence of an agreement with the bank and must be concluded in writing. Careful reading when drawing up and signing ensures that unpleasant moments are avoided.

Classification of types of banking agreements

The main classification of types of banking agreements includes division into two groups:

a bank deposit agreement, where a bank or other financial organization, having accepted the depositor’s funds, undertakes to ensure the return of the full amount, taking into account its increase by an agreed interest rate;
a bank account agreement, which implies the execution of client orders for the receipt and crediting of funds, issuing, moving them, withdrawing certain amounts, and carrying out various operations.

Types of bank accounts:

by object: ruble or currency;
by subject: legal entities, entrepreneurs, individuals. persons or credit institutions;
by purpose: current accounts or special

Banking agreements include all conditions for the storage, use/movement of money within the framework of the Civil Code of the Russian Federation.

Types of banking agreements for entrepreneurs

Main types of banking agreements for entrepreneurs:

by content of activity: production, sale, rental of real estate, provision of services;
according to the composition of the parties: both parties are entrepreneurs or one of the parties is an entrepreneur.

Manufacturing contracts most often involve an order for a batch of goods. Sales include: purchase and sale, supply of goods, contracting, energy supply. Rentals concern real estate and property: leasing, rental. For services/work: contract for repair/construction, state. projects. One party to the agreement is the entrepreneur: retail purchase and sale, rental, credit, transportation/expedition, agency and many others. Both parties are entrepreneurs: commercial concession, financial leasing, simple partnership.

Bank account agreement

A bank account agreement is concluded by the client and the bank for the storage of funds, crediting and disposal of cash by the client at its own discretion. Accounts include: settlement, deposit, loan, depending on the types of transactions performed. Any financial organization can act as a bank - legal entities that have a license and have received the right to raise funds on the terms of urgency, payment, and repayment. A client of a financial structure is considered to be any person using the bank’s services, including foreign citizens. Rarely does the state act as a party to a bank account agreement.

Depending on the specifics of the financial institution’s activities, the conditions specified in the agreement are individual in some details, but always guarantee compliance with current legislation.

Examples of banking agreements

Examples of banking agreements to familiarize the bank client in detail with the terms of cooperation offered by the institution are often presented on the official websites of financial institutions. At the office of any bank, upon request, a bank client, as well as a potential client, can be provided with an example of a banking agreement for making a deposit, receiving and other services.

Most often, individuals are offered lending services, banking services, the use of plastic cards (like MasterCard), legal entities: to open a bank/corporate account, accept cash, bank deposit, payment agent, lending (including Overdraft), opening a credit line.

Loan agreement

A loan agreement involves borrowing money, equipment, and other valuables for a certain period. Loan agreements at a banking institution are concluded with a client for the wintering of a certain amount of money for a specified period (usually for individual needs). The parties are obliged to repay the loan on time and with compensation, including interest for use and/or depreciation in the case of a reimbursable type, only repayment for an interest-free preferential agreement. The borrower can be an individual or a legal entity; for legal entities, financial organizations usually offer special terms of service and privileges.

Borrowing is subject to money, less frequently replaceable things, presuming the return of accepted property or funds or something identical. An object always has generic characteristics: number, weight, measure. The agreement comes into force from the moment the object is transferred and is expressed in the appearance of a debt obligation on the one hand and a right of claim on the other.

Bill of exchange and its types

A bill of exchange is practically the first of its kind security/debt receipt, the circulation of which is governed by a special law called bill of exchange. According to the document, the debtor, on the one hand, owes the creditor, on the other, a certain amount of money. Rights to the amount indicated in the document are freely transferred without the consent of the person who issued it.

So, a debt paper that is not subject to mandatory state registration, permitted for use as a means of payment, freely transferable, existing only in paper form - a bill of exchange. And its types are as follows: simple/solo and transfer/draft. Solo is most often used when there is a lack of funds when purchasing goods, as an obligation to pay the amount of debt. When the specified amount of money is repaid, the holder of the bill gives the document to the borrower. The difference is that a bill of exchange is intended to be paid to a third party by his order, namely the creditor of the person to whom the debt is owed in this case.